by Sam Rutherford

The Texas Court of Criminal Appeals, that state’s highest court of review in criminal cases, held that the prosecution violates a state court rule of discovery by failing to promptly disclose relevant evidence in the possession of law enforcement, even if unbeknownst to the prosecution, in response to a timely discovery request from defense counsel. The Court further held that trial courts have authority to exclude untimely disclosed evidence as a sanction for the prosecution’s failure to comply with its discovery obligations, irrespective of its good or bad faith.

Background

Dwayne Robert Heath was indicted for injury to a child in 2016. Defense counsel was appointed to represent him and shortly thereafter—on March 23, 2017—emailed a request for discovery to the district attorney’s office. The email included the relevant case number and asked, “[c]an I get discovery on this client?” The State produced discovery, including law enforcement reports, child protective services records, and photographs.

The case was set for trial on three subsequent occasions but was continued each time due to court congestions. Each time the case was set, the prosecution announced that it was “ready” for trial. Heath’s trial was finally scheduled to started on May 29, 2018. Six days prior to trial, however, the prosecutor emailed defense counsel stating that additional discovery was available. The prosecutor had just learned that a recording of the 911 call placed by the child’s mother on the day of the crime existed.

Heath’s attorney filed a motion to suppress the 911 recording, arguing that the prosecutor had violated a state court discovery rule and various constitutional provisions by failing to timely disclose the evidence. The prosecutor contended that she did not know about the recording until interviewing the child’s mother right before trial and that she was not responsible for disclosing evidence she was unaware of and not in her possession. Because she had not acted in bad faith, the prosecutor requested that the trial court continue the trial rather than exclude the evidence.

Defense counsel argued that the discovery rule places the burden of disclosure on “the state,” which means both the prosecutor’s office and other law enforcement agencies. The rule also says that disclosure should be made “as soon as practicable” following a discovery request, which had occurred in Heath’s case 14 months prior. Finally, counsel argued that the prosecution’s good or bad faith was irrelevant under the discovery rule.

The trial court granted the motion and excluded the 911 recording, denying the prosecutor’s request for a continuance. The trial court then stayed the case, so the prosecutor could appeal its ruling excluding evidence. The Texas Court of Appeals initially ruled that defense’s counsel’s email requesting discovery was insufficient to trigger the prosecutor’s discovery obligations because it did not cite the applicable court rule, but the Texas Court of Criminal Appeals granted review and reversed because the prosecutor had defaulted this argument. On remand, the Court of Appeals affirmed the trial court ruling and the Court of Criminal Appeals again granted review.

Analysis

Resolution of the State’s appeal turned on an interpretation of Article 39.14(a) of the Texas Code of Criminal Procedure, as amended by the Michael Morton Act, which provides in pertinent part that “as soon as practicable after receiving a timely request from the defendant the state shall produce … [reports, statements, recordings, or other items] not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” Interpretation of this provision is a matter of law courts review de novo, with the focus being on discerning the “literal text of the statute” to discern its “fair, objective meaning” at the time of enactment. Citing Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1985).

The Court noted that this provision was enacted in 2013 as part of the Michael Morton Act, which “revamped Article 39.14 completely,” “overhaul[ed]” discovery in Texas, and “[o]n the whole” made “disclosure the rule and non-disclosure the exception” in Texas. See Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021) (recounting history of discovery in Texas). Under prior versions of this rule, there was no general right to discovery in Texas. Rather, discovery decisions were left to the discretion of trial judges. Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980).

The first question presented in Heath’s case was whether the prosecution violated its discovery obligations under Article 39.14, as amended by the Michael Morton Act, by turning over to defense counsel the 911 recording six days prior to trial but, unbeknownst to the prosecution, were in the possession of a law enforcement agency during the 14 months between defense counsel’s discovery request and Heath’s trial date. Resolving this issue required the Court to “consider the meaning of the phrases ‘the state’ and ‘as soon as practicable’ as used in Article 39.14(a).”

The State argued that the term “the state” as used in Article 39.14 means “counsel for the state.” The Court, however, rejected this interpretation. Instead, the Court determined that the word “state” means “exactly what one would think it means—the ‘State of Texas.’” Just like the phrase “defendant” means both the defendant personally and his or her attorney, “the state” refers to both the “State of Texas” and the prosecutor as the state’s representative, the Court explained. Moreover, any general reference to the “state” also includes the “State of Texas in its broadest sense,” which means that Article 39.14 “places a duty to disclose evidence upon the prosecutor as well as law enforcement.” Thus, the Court held that discoverable material in the “possession, control, or custody” of law enforcement is deemed to be in the possession, control, or custody of “the state” for purposes of the prosecution’s disclosure obligations under Article 39.14.

Having determined that the prosecution had a duty to turn over the 911 recording in the possession of law enforcement “as soon as practicable after receiving a timely request,” the next question was when that disclosure must be made. The State argued that its obligation to disclose begins upon its actual discovery of material evidence—that is, personal knowledge of the existence of discoverable material. The Court rejected this argument as well because Article 39.14 “does not contain a knowledge requirement.” Instead, prosecutors are required to disclose evidence in their possession or the possession of other state actors “as soon as practicable” after receiving a request from defense counsel. And “practicable” is defined by its common usage as “reasonably capable of being accomplished.”

The Court made it clear that upon receipt of a discovery request from defense counsel, prosecutors have a duty “to seek out evidence to comply with Article 39.14” and that law enforcement have a duty “to turn evidence over to the prosecution for disclosure.” It explained that if the State’s interpretation of “as soon as practicable” were adopted, “prosecutors would be under no obligation to produce anything because they could always claim that the evidence was unknown and currently unavailable to the prosecutor, even if it were in the possession of a law enforcement agency and readily available upon request.”

The Court noted that these interpretations are particularly appropriate because the Michael Morton Act was specifically intended to impose discovery obligations upon the State that are “much broader” than either the due process considerations recognized in Brady v. Maryland, 373 U.S. 83 (1963), or under the Rules of Professional Conduct.

The Court then turned to the question of whether the prosecutor in the present case violated Article 39.14 by failing to obtain and turn over to defense counsel the 911 recording until just a few days before trial. The Court stated that the only reason the prosecutor did not know about the recording’s existence is because she failed to ask law enforcement for discovery. Once she asked for the recording, it was disclosed promptly, showing that it could have and should have been obtained much sooner. Thus, the Court held that the State violated its discovery obligations under Article 39.14.

Finally, the Court addressed the question of whether trial courts have the authority to exclude evidence as a sanction for violating Article 39.14. Although Article 39.14 does not itself contain a provision on available sanctions, the Texas Court of Criminal Appeals has previously held that trial judges may excluded inculpatory evidence inadvertently withheld from the defense by a prosecutor. Hollowell v. State, 571 S.W.2d 179 (Tex. Crim. App. 1978). Similarly, other cases have affirmed a trial court’s authority to exclude evidence not disclosed pursuant to discovery orders. See, e.g., Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). In light of the prosecution’s mandatory obligation to seek out discoverable evidence and furnish it to the defense under the Michael Morton Act, the Court thus concluded that exclusion must be an available remedy. Moreover, a showing of bad faith by the prosecutor or prejudice to the defense is not required; all that is necessary for exclusion is a finding that the prosecutor acted with “willfulness.”

The Court determined that the prosecutor acted willfully in this case by not seeking out discovery in the possession of law enforcement at any point during the 14 months prior to trial, thus entitling the defendant to a remedy. The Court made it clear that exclusion is not the only remedy available to the trial court—for example, it could grant the defense a continuance. But because the State had repeatedly said it was ready for trial before it knew about the 911 recording, the Court held that the trial court did not abuse its discretion by denying the State’s request for a continuance and excluding the 911 call evidence.

Conclusion

Accordingly, the Court affirmed the trial court’s finding that the State violated Article 39.14 and its order to exclude the 911 recording and remanded the case for further proceedings. See: State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024).

Editor’s note: Anyone interested in the topic of the State violating its disclosure obligations under Texas law is strongly encouraged to read the Court’s full opinion, which is particularly thorough, detailed, and instructive. In fact, interested readers outside of Texas will likely find the Court’s discussion of Brady disclosure obligations and violations thereof useful as well.   

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