Kassim Lawal v. State , 368 S.W.3d 876 ( 2012 )

Affirmed and Opinion filed May 31, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00705-CR
___________________
KASSIM LAWAL, Appellant,
V.
THE STATE OF TEXAS, Appellee.
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1288128
OPINION
Appellant Kassim Lawal pleaded guilty to theft of property by a government
contractor. After the trial court conducted a pre-sentence investigation, the court sentenced
Lawal to ten years in prison. On appeal, Lawal contends that (1) the trial court abused its
discretion when it did not allow him to withdraw his guilty plea and (2) the trial court’s
denial of his motion for a Health Insurance Portability and Accountability Act of 1996
(HIPAA) protective order denied his right to due process during his appellate proceeding.
We affirm.
I
Lawal owned Singapore Drug and Alcohol Rehabilitation, a licensed chemical
dependency treatment facility that provided counseling to minors and others under the
Medicaid program for chemical dependency. Lawal contracted with a charter school
group, Community Education Partners (C.E.P.), to provide individual or group counseling
to juveniles during school hours. Lawal billed Medicaid for the services provided. Under
Medicaid’s billing requirements, Lawal was obligated to provide the services for which he
billed Medicaid, and the person receiving the services had to need them.
Sergeant William Marlowe, an investigator with the Medicaid Fraud Control Unit
of the Attorney General’s Office, received a referral regarding Singapore from the Texas
Department of Health and Human Services. Marlowe looked through the claims data from
March 2005 through April 2006 that Lawal submitted to see what Medicaid was billed for
and what it paid. Marlowe immediately noticed that the records showed services being
rendered to school-age children for eight to twelve hours of chemical dependency
treatment during school hours.
Marlowe was able to locate thirty-four of the juveniles who were the subject of the
billing. Interviews with the juveniles or their guardians revealed that sixteen of the
thirty-four Medicaid recipients either received little or inadequate services from Singapore.
Further, the services provided were of an educational nature rather than for chemical
dependency treatment—services for which Medicaid did not provide reimbursement. In
some cases, the services were provided by unqualified individuals such as a receptionist
and interns. Singapore also billed and received payments for individual counseling when in
fact it provided group counseling. Singapore submitted billing for these sixteen Medicaid
recipients totaling $67,267.88 and received $41,161.22.
Eighteen of the thirty-four Medicaid recipients never received any services. Some
had never heard of the facility at all. Singapore submitted billing for these 18 Medicaid
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recipients totaling $73,641 and received $50,566.82. Thus, the investigation showed that
Medicaid had reimbursed Singapore a total of $91,728.04 based on fraudulent billing.
Marlowe also interviewed employees of Singapore, including Kelvin Devereaux,
who had been one of the clinical directors at Singapore from November 2004 until October
2005. The interviews revealed a high turnover rate of both clinical directors and
employees. Many employees left over ethical concerns or personality conflicts. The
employees acknowledged that they were providing educational and life skills services
rather than chemical dependency treatment. Despite the high turnover, the billing pattern
and deficiencies in the file quality were consistent throughout the billing period alleged in
the indictment.
The employee interviews also indicated that that Lawal kept the patient files under
lock and key and did the billing himself. Although Lawal initially used a billing company
to submit billings to Medicaid, the majority of the time frame alleged in the indictment he
personally did the billing.
Based on the records submitted for billing, Marlow determined that Singapore had
treated ninety-eight juveniles. Marlowe also obtained the patient files from Singapore, but
discovered that the files only covered sixty-two of the patients, and many files were
missing. The files that were recovered included no parent consent forms, even though
Medicaid required parents of juveniles to be aware of and sign off on chemical dependency
treatment. Moreover, the majority of the files indicated no chemical dependency. Few of
the juveniles diagnostic exams reflected more than recreational drug use, and most
appeared to be referred for anger management, parental issues, or general life skills.
Therapy notes in the files indicated that the therapy being performed was drug education or
anger management, which did not qualify as chemical dependency treatment. Additionally,
the group therapy session notes appeared to be mass copied between files and few were
related to drug abuse; many were signed by unlicensed and untrained individuals.
3
Marlowe testified that he interviewed about a third of Singapore’s patients before he
ran out of time. Although he acknowledged he did not know what the missing files
reflected, he testified that he was able to prove $91,000.00 in fraud based on the records he
was provided and the interviews he had conducted. Although Marlowe had not been able to
prove more than $91,000.00 due to time, statutory constraints, and the ages of the patients
involved, in his opinion all the billing was fraudulent.
In July 2010, the State indicted Lawal for aggregate theft by a government
contractor of between twenty-thousand and one-hundred-thousand dollars. The case was
set for jury trial commencing February 14, 2011.
Before trial, Lawal wrote a letter to the trial court complaining about his attorney,
but also indicating that he was willing to accept the consequences on behalf of his company
even though he claimed he was innocent. In the letter, Lawal claimed that Devereaux had
broken into his office and stolen all the patient files in retaliation for being fired. According
to Lawal, Devereaux still had the files and therefore Lawal was unable to respond to the
theft charge.
After the trial was reset, Lawal’s counsel moved to withdraw due to a medical
condition. The trial court granted the motion and appointed new counsel to represent Lawal
on March 2. Lawal’s new attorney requested appointment of an investigator and the trial
court granted the motion.
On May 11, Lawal pleaded guilty to the offense without a punishment
recommendation. He waived his rights and entered a judicial confession stipulating to the
facts alleged in the indictment. Lawal testified that he was pleading guilty for no other
reason than because he was guilty. He also denied that anyone had threatened or coerced
him to enter into the plea. Because Lawal was not a citizen of the United States, the trial
court admonished him that it was possible he could be deported as a result of his plea.
Nevertheless, Lawal indicated that he still wished to continue his plea. He agreed that his
attorney had answered all his questions and he was satisfied with his representation.
4
Lawal’s counsel also indicated that he had sufficient time to visit with Lawal and he
believed Lawal was competent and understood what he was doing.
Lawal further testified that he understood he was pleading without an agreed
recommendation. The trial court admonished him regarding the range of punishment, and
Lawal indicated he understood that the punishment assessed would fall within that range.
Lawal also indicated that no one had promised him deferred adjudication or regular
probation. He maintained that he wished to continue with his plea. Finally, Lawal
acknowledged that he understood he was making a judicial confession in open court and
that the trial court could find him guilty based on that alone. The trial court found sufficient
evidence to substantiate Lawal’s guilty plea, but deferred its finding of guilt until July 21,
for a hearing on the pre-sentence investigation report (PSI). Upon further questioning by
his counsel about the details of his immigration status, Lawal acknowledged that he
understood that he could be deported, but he still wanted to proceed with his plea.
In the PSI report, Lawal claimed that Devereaux took thirty-nine patient files. He
claimed those thirty-nine patients were previously provided counseling by another
provider, Community Counseling Associates, where Devereaux had worked as a
counselor. According to Lawal, Devereaux worked at Singapore as the program director
until he asked for more money. Then, according to Lawal, one Sunday in 2005, Devereaux
broke into the office and took all the important documents out of each file and threatened to
call Medicaid if Lawal did not pay him his last salary. Lawal claimed he was not guilty of
theft because he provided the services his company was supposed to provide to their
clients, and he had no intent to defraud anyone. He blamed Devereaux for taking the files,
but he felt he was responsible for the missing files as the owner of the business. He also
requested a second chance and the opportunity to receive probation.
At the PSI hearing, Lawal’s attorney noted after reading the PSI that Lawal denied
his guilt. Based on that, Lawal’s attorney asked the trial court to allow Lawal to withdraw
his plea and set the case for trial. The attorney argued that because Lawal was a citizen of
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Nigeria he might have been confused during his conversations with counsel or the trial
court’s admonishments at the plea hearing. But the attorney reiterated that he was satisfied
he had conveyed to Lawal his options. The attorney also noted that he had specifically
asked Lawal why he had pleaded guilty, and Lawal responded that he wanted to get
probation. And, when Lawal’s attorney asked Lawal if he had received any promises or
indications that he would receive probation, Lawal answered that he had not.
In response to the claim of possible language difficulty, the prosecutor noted that
Lawal’s first attorney was Nigerian. The prosecutor also noted that Lawal’s second
attorney had been on the case for “a fair amount of time” before the plea. Finally, the
prosecutor reminded the trial court that Lawal’s attorney had specifically asked questions
regarding the immigration issue at the plea hearing and Lawal understood what he was
doing when he pleaded guilty. The trial court denied the motion to withdraw the plea.
Lawal testified on his own behalf at the PSI hearing. He testified that he
remembered entering his guilty plea and being admonished by his counsel and the trial
court regarding the consequences of his plea. He again denied that anyone told him he
would receive probation if he pleaded guilty. He maintained that he entered his guilty plea
knowingly and voluntarily. He again indicated he was not forced in any way to enter his
plea. Additionally, Lawal indicated not only that he had pleaded guilty because he was
guilty, but also that his counsel told him that he would not allow Lawal to plead guilty if he
was unwilling to say that he was guilty.
But Lawal also stated that he pleaded guilty because he was negligent, not because
he intentionally committed theft. Lawal explained that he understood that if he insisted on
going to trial he would have his trial in another court and he wanted to stay in his current
court. When asked if he accepted responsibility for the offense, Lawal accepted
responsibility for “the negligence of what happened,” but he denied that he was a thief.
Lawal also claimed that Devereaux took patient files that covered from 2004 to October
2005.
6
Lawal admitted that he prepared the billings to submit to the State for payments. He
also admitted that he had control over the final billings and reviewed the documents before
submitting them. Lawal testified that everything he submitted was correct. He understood
that the program could not bill for education services, but he maintained that he never
submitted billing for education services. He explained that, in his opinion, interns were
also licensed to provide chemical dependency services if they were directed by someone
who is licensed. Lawal denied that there were people at Singapore who were not qualified
to provide services. Finally, Lawal acknowledged that Devereaux was fired in October
2005, and worked for Lawal only during the first half of the time period alleged in the
indictment.
Lawal’s counsel again reiterated his concerns about the voluntariness of Lawal’s
plea during his closing argument. Counsel requested that the trial court fashion a ten-year
probated sentence to allow Lawal to pay restitution.
The trial court sentenced Lawal to ten years in prison on August 2, 2011. On August
22, within the thirty-day deadline to file a motion for new trial, Lawal filed a “Motion for
HIPAA Protective Order” seeking permission to review the medical and psychological
records of the patients that Lawal improperly billed. The trial court denied the motion.
Lawal did not file a motion for new trial.
II
In his first issue, Lawal contends the trial court abused its discretion when it did not
allow him to withdraw his guilty plea because it was given involuntarily.
A defendant may withdraw his plea as a matter of right, without assigning a reason,
until judgment is pronounced or the case is taken under advisement by the trial court.
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Jagaroo v. State, 180
S.W.3d 793, 802 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). If, however, a
defendant desires to withdraw his guilty plea after the court has taken the case under
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advisement, withdrawal of the plea is within the sound discretion of the court. Jackson, 590
S.W.2d at 515; Jagaroo, 180 S.W.3d at 802. After a trial court has admonished a
defendant, received the plea and evidence, and passed the case for pre-sentence
investigation, the case has been taken under advisement. DeVary v. State, 615 S.W.2d 739,
740 (Tex. Crim. App. 1981); Jagaroo, 180 S.W.3d at 802.1 Because Lawal did not seek to
withdraw his plea until the case had been taken under advisement, he could not withdraw
the plea as a matter of right.
Lawal argues that he denied any intent to defraud and maintained his innocence
throughout the proceedings; further, the trial court received evidence that one of Lawal’s
counselors had stolen documents and evidence from Singapore that could have supported
his claim that he did nothing wrong and which would have reflected that Lawal was
responsible for billing based only on the hours of patient treatment reported to him by his
counselors. Moreover, during the PSI hearing, Lawal informed the court that he was a
Nigerian citizen who had some difficulties understating the English language and his
attorney acknowledged that there may have been miscommunication in his conversations
with Lawal. Thus, Lawal contends, his plea was involuntary and the trial court abused its
discretion in denying him the ability to withdraw the plea.
Nevertheless, because the judge is free to make any finding based on the evidence
regardless of the plea, withdrawal of a guilty plea is not required even when evidence in a
PSI raises an issue of a defendant’s innocence. Fisher v. State, 104 S.w.3d 923, 924 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); Graves v. State, 803 S.W.2d 342, 346 (Tex.
App.—Houston [14th Dist.] 1990, pet. ref’d). Proper admonishments by a trial court
1
Lawal cites Payne v. State, 790 S.W.2d 649, 651 (Tex. Crim. App. 1990), for the proposition that
a judge must allow a defendant to withdraw a guilty plea when there is some evidence that the defendant is
either not guilty or guilty of a lesser-included offense. Payne is distinguishable, however, because in that
case a timely motion to withdraw the plea was raised during the plea hearing when the defendant pleaded
guilty but then offered exculpatory testimony. See id. at 650–51. Here, Lawal plead guilty in an earlier
proceeding and the trial court had taken the case under advisement, leaving only the issue of his
punishment.
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establish prima facie proof that a guilty plea was entered knowingly and voluntarily.
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Houston v. State, 201
S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The burden then shifts
to the defendant to show he pleaded guilty without understanding the consequences of his
plea and, consequently, suffered harm. Houston, 201 S.W.3d at 217. A defendant has a
“heavy burden” to prove in a subsequent hearing that he entered the plea involuntarily. Id.
Here, Lawal expressly and voluntarily waived his right to a jury trial, judicially
confessed to the charged offense, was admonished, and entered a guilty plea. He also
acknowledged he was pleading guilty because he was guilty. Both the trial court and his
counsel vigorously questioned Lawal about his understanding of the consequences of his
plea. Although trial counsel suggested the possibility of miscommunication, Lawal
affirmatively demonstrated through his answers to questions that he understood the
consequences of his plea. And, at both the plea hearing and the PSI hearing, Lawal
acknowledged that no one forced him to plead guilty or promised him anything in
exchange for his plea, and he understood that the trial court could sentence him within the
full range of punishment. On this record, we cannot say that the trial court abused its
discretion by denying Lawal’s motion to withdraw his guilty plea. See Jagaroo, 180
S.W.3d at 802–03; see also Saldana v. State, 150 S.W.3d 486, 488, 490–91 (Tex.
App.—Austin 2004, no pet.) (holding trial court did not abuse its discretion in denying
motion to withdraw defendant’s guilty plea after defendant unveiled exculpatory scenario
during his testimony at PSI hearing).
We overrule Lawal’s first issue.
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III
In his second issue, Lawal contends the trial court’s denial of his motion for a
HIPAA protective order denied him due process during his appellate proceedings. In the
motion, Lawal’s counsel sought the medical and psychological records of the juveniles that
were the subject of Singapore’s fraudulent billing. Lawal sought these records from both
C.E.P., which referred the juveniles to Singapore, and Devereaux’s former employer,
Community Counseling Associates, which provided outpatient services to the juveniles
before they were referred to Singapore. Lawal also sought billing records submitted to the
Texas Medicaid and Healthcare Partnership, as well as records from the Texas Department
of State Health Services that could contain personal health information. Lawal argued in
the motion that he believed the records would contain exculpatory information.
According to Lawal, these records may have answered questions concerning what
treatment the juveniles received before being referred to Singapore, what diagnoses the
juveniles received from counselors outside of Singapore, why the juveniles were referred
to Singapore, and how much treatment the juveniles received from other providers during
their time at C.E.P. Lawal claims that his counsel sought this information to raise a claim of
actual innocence, to request a new trial in the interest of justice, and to raise the issue of
ineffective assistance of counsel for failure to investigate. Lawal argues that “[w]ithout the
ability to independently investigate the treatment history of the juveniles, appellate counsel
was unable to meaningfully determine whether or not Lawal’s case merited a motion for
new trial.” Consequently, Lawal maintains, the trial court’s denial of his motion was
constitutional error requiring reversal.
A
As an initial matter, Lawal appears to suggest that his right to file a motion for new
trial creates an additional, unqualified right to post-trial discovery, arguing that “the right
to present a motion for new trial is an absolute procedural protection afforded the
defendant in a criminal trial.” See Tex. Code Crim. Proc. art. 40.001 (“A new trial shall be
10
granted an accused where material evidence favorable to the accused has been discovered
since trial.”); Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978) (stating that
the hearing on a motion for new trial is a “critical stage of the proceedings” and is “the only
opportunity to present to the trial court certain matters that may warrant a new trial, and to
make a record on those matters for appellate review”).
However, as the Court of Criminal Appeals has noted, the right to a hearing on a
motion for new trial is not truly an “absolute right.” Reyes v. State, 849 S.W.2d 812, 815
(Tex. Crim. App. 1993). The purpose of a hearing on a motion for new trial is to (1) decide
whether the cause should be retried; and (2) prepare a record for presenting issues on
appeal in the event the motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim.
App. 2009). A hearing is not required when the matters raised in the motion for new trial
are subject to being determined from the record. Id. But even a defendant who has raised
matters not subject to being determined from the record is not entitled to a hearing on his
motion for new trial unless he establishes the existence of “reasonable grounds” showing
that the defendant could be entitled to relief. Id. at 338–39. To deter “fishing expeditions,”
a motion for a new trial on matters not determinable from the record must be supported by
an affidavit showing the grounds of attack as a prerequisite to a hearing on that motion. Id.
at 339.2
Thus, contrary to Lawal’s argument, a defendant’s right to have a motion for new
trial heard is subject to certain limitations. Moreover, Lawal’s authorities do not stand for
the proposition that his right to file a motion for new trial entitles him to conduct the kind of
post-trial discovery he seeks. Lawal cites Griffin v. Illinois, 351 U.S. 12, 18 (1956), for the
proposition that Texas law “engenders a further right to due process with regard to an
accused’s motion for new trial.” But Griffin dealt with an indigent defendant who sought a
free transcript on appeal so he could be on the same footing as a non-indigent defendant,
2
We note that Lawal did not file a motion for new trial, nor did he support his motion for HIPAA protective
order with an affidavit.
11
not a right to conduct post-trial discovery. See id. at 14–15. Similarly, Lawal points to
Jackson v. State as recognizing that an accused’s right to present evidence in support of a
motion for a new trial is a valuable right that should not be unduly constrained or curtailed
by any actions of the trial judge. See 318 S.W.2d 98, 102 (Tex. Crim. App. 1958). But in
that case a trial court threatened to hold the juror-witnesses in contempt if they testified to
jury misconduct at a hearing on a motion for new trial. Id. at 101–02.
Neither Griffin nor Jackson support Lawal’s position that the right to file a motion
for new trial necessarily engenders an additional right to secure post-trial discovery.
Therefore, we reject Lawal’s assertion that he is afforded an absolute right to conduct
post-trial discovery merely because the statutory right to file a motion for new trial exists.
B
In his appellate brief, Lawal argues broadly that he has a constitutional due-process
right to present a defense. He does not specifically cite as authority any particular provision
of either the federal or state constitution. In his motion for HIPAA protective order below,
however, Lawal argued to the trial court that he “has a right to compulsory process under
the Sixth Amendment to the United States Constitution and Article I, Section 10 of the
Texas Constitution.” He further argued that the protective order he sought would allow him
to “exercise his right to compulsory process.” We therefore construe his constitutional
argument to encompass the constitutional right to compulsory process.
The Sixth Amendment right to compulsory process “‘is in plain terms the right to
present a defense, the right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies.’” Coleman v. State, 966
S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19
(1967)).3 However, the right to compulsory process is not an absolute right; it is instead
3
Lawal also alleged in his motion for HIPAA protective order that Article I, Section 10, of the
Texas Constitution compelled the trial court to enter the HIPAA protective order, but on appeal he does not
provide any argument or authority as to why the Texas Constitution provides greater protection than the
12
dependent upon the defendant’s initiative and affirmative conduct. Taylor v. Illinois, 484
U.S. 400, 410 (1988); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort Worth
2006, pet. ref’d). We review complaints concerning limitations on the right to compulsory
process under an abuse-of-discretion standard. Drew v. State, 743 S.W.2d 207, 225 n.11
(Tex. Crim. App. 1987); Emenhiser, 196 S.W.3d at 921.
To exercise the right to compulsory process, a defendant must make a plausible
showing to the trial court, by sworn evidence or agreed facts, that the witness’s testimony
would be both material and favorable to the defense. Coleman, 966 S.W.2d at 528; see also
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (explaining that a defendant
seeking to establish a violation of his constitutional right to compulsory process must at
least make “some pladusible showing” of how the evidence sought would be both material
and favorable to his defense).4 Were the burden of showing materiality and favorableness
not placed on the defendant, “‘frivolous and annoying requests could make the trial endless
and unduly burdensome on the Court and all officers thereof.’” Coleman, 966 S.W.2d at
528 (quoting Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)).
Here, Lawal sought a protective order for the patient records of 70 juveniles from
four different entities solely on his right to a new trial and his constitutional right of
compulsory process. He did not assert in his motion that the order was required to raise a
claim of actual innocence, to request a new trial in the interest of justice, or to raise the
issue of ineffective assistance of counsel. In the motion, Lawal asserted that he believed the
records “will contain exculpatory information.” He also asserted that it was necessary to
obtain the records to fully investigate his case and to determine whether he had “any bona
fide issues to litigate.” But Lawal did not explain how the records were material and
U.S. Constitution. Therefore, his state constitutional claim is waived. See, e.g., Emery v. State, 881 S.W.2d
702, 707 n.8 (Tex. Crim. App. 1994) (holding defendant failed to preserve his state constitutional claim
when he presented no argument or authority as to why Article I, Section 10 provided greater protection than
the Sixth Amendment of the U.S. Constitution).
4
Compulsory process is not limited to witnesses, but extends to the production of non-testimonial
evidence as well. See United States v. Nixon, 418 U.S. 683, 709 (1974).
13
favorable in light of his guilty plea and the evidence of Lawal’s guilt presented at the PSI
hearing. This evidence included investigator Marlowe’s testimony concerning his review
of the available records and interviews of the juveniles (or their guardians) whose
treatment was the subject of Singapore’s billings to Medicaid. The interviews revealed that
the juveniles received little or inadequate treatment, treatment for which Medicaid does not
provide reimbursement, and treatment provided by unqualified individuals. Some of those
interviewed had never even heard of the facility. Further, the fraudulent billing Marlowe
found was not limited to the time frame in which Devereaux was working at Singapore,
undercutting Lawal’s claim that Devereaux was responsible for the theft.
Thus, even if he were entitled to post-trial discovery, Lawal failed to demonstrate
that the documents he sought would be material and favorable to his defense. 5 See
Coleman, 966 S.W.2d at 528. Moreover, none of these records would support a claim of
newly discovered evidence because the records were necessarily available before Lawal
pleaded guilty. See, e.g., Ex Parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006)
(explaining that actual-innocence claims generally must be supported by newly discovered
or newly available evidence); Drew v. State, 743 S.W.2d at 225 (holding that a claim of
newly discovered evidence requires a showing that the failure to discover the evidence was
not due to the defendant’s lack of diligence).
Lawal cites Holmes v. State, in which the Court of Criminal Appeals reversed a
defendant’s conviction after a “no contest” plea because it determined that the trial court
violated the defendant’s right of compulsory process. See 323 S.W.3d 163, 173–74 (Tex.
Crim. App. 2010) (op. on reh’g). In Holmes, the trial court refused to allow the defendant’s
attorney to cross-examine the State’s expert on the accuracy of its breath-testing device
during his trial for driving while intoxicated. Id. at 173. Soon after this ruling, the
5
Consequently, it is unnecessary to consider whether Lawal may be entitled to a remand to allow
the trial court to review the documents sought in camera. See Thomas v. State, 837 S.W.2d 106, 113–14
(Tex. Crim. App. 1992) (holding that defendant did not have a due-process right to complete disclosure of
exculpatory material in State’s file, but was entitled to have the trial court examine material in camera,
relying on Pennsylvania v. Ritchie, 480 U.S. 39, 58, 60 (1987)).
14
defendant pleaded “no contest.” Id. The Holmes court held that the ruling deprived the
defendant of the right to present a defense and contributed to the defendant’s changing his
plea from “not guilty” to “no contest.” See id. at 173–74.
Unlike Holmes, Lawal knowingly and voluntarily pleaded guilty before a trial
commenced; he did not move to obtain a protective order to obtain allegedly exculpatory
discovery until after he was found guilty and sentenced. Therefore, he was not prevented
from presenting a defense at trial and was not compelled to plead guilty as a result. Holmes
does not advance Lawal’s arguments.
On this record, Lawal has failed to demonstrate that he has a post-trial right to
compulsory process and that this right required the trial court to enter his requested
protective order under HIPAA. We overrule Lawal’s second issue.
***
We overrule Lawal’s issues and affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Christopher.
Publish — TEX. R. APP. P. 47.2(b).
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