“According to the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantees of due process.” Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. March 3, 2021)
Just four months before this seminar, our Court of Criminal Appeals fully gave teeth to the Michael Morton Act which was enacted eight years ago. Now discovery in Texas should be much more of what is mine is yours. Now trials can be more fairly fought. Now pleas can be more fairly accepted. Now justice can be more fairly served. But how did we get here? Why is this such a big leap? A brief history is important to realize just how far our system has evolved. Then, let’s look to what is out there. What is absolutely necessary as a practitioner in conducting discovery in a criminal case and how to get it.
A Brief History
Let’s go back to 1952. Ronald Reagan and Nancy Davis were married in California, Ernest Hemingway published the Old man in the Sea, Mrs. Paul’s introduces frozen fish sticks, the Yankees beat the Brooklyn Dodgers in the World Series and oh yes, The Supreme Court of the United States, one year prior to the Warren Court still had not much of a care about the accused. An appellant convicted of murder and sentenced to death, contended, “that the trial court’s refusal to require the district attorney to make one of appellant’s confessions available to his counsel before trial was contrary to due process.” What says the Court? “We think there is no substance in this argument…While it may be the better practice for the prosecution thus to exhibit a confession, failure to do so in this case in no way denied appellant a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witnesses to study the confession. In addition the trial judge offered further time for that purpose but it was refused.” Leland v. Oregon, 343 U.S. 790, 801 (1952). [As an aside the case involved an insanity defense, probably making an analysis of the confession that much more important]. This would be the Supreme Court’s way of saying to the appellant, “Silly rabbit, Trix are for kids,” but General Mills would not introduce Trix for another 2 years. Morris Leland was executed in a gas chamber on January 9, 1953.
Bring on the 1980’s. Still in the era of disco and decadence, guess what—that’s right our State of Texas still hated discovery for the accused. The Court of Criminal Appeals in another case where the accused was sentenced to death found that the “appellant does not have a general Right to discovery of evidence in the possession of the State, even if the evidence is the appellant’s own statements (internal citations omitted). Art. 39.14 makes it clear that the decision on what is discoverable is committed to the discretion of the trial court.” Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980). Not surprisingly, the Court affirmed the conviction. The biggest insult while reading this opinion comes where the court states, “Nevertheless, appellant argues that he was prejudiced by the failure to discover the tape recordings because counsel for appellant claim that, had they known of the tapes, they would have accepted a prosecutorial offer to plead guilty in exchange for a recommended life sentence, an offer which had been withdrawn by the time counsel learned about the existence of the tape. This claim of prejudice does not make the claim “material,” as that term is defined in Stone and Agurs.” Id. at 941.
Notably, this document will not focus on Brady v. Maryland 373 U.S. 83 (1963). Brady was then a landmark case requiring the prosecution to begin turning over material exculpatory evidence to the defense. The main definition of whether evidence is material is whether there is a reasonable probability that the conviction or sentence would have been different had these materials been disclosed. The reason for not discussing this further in this document is because with the New 39.14 via the Michael Morton Act as articulated by the CCA in March 2021 now in Watkins, material is now interpreted in 39.14 as meaning, “having some logical connection to a fact of consequence,” Watkins v. State, 619 S.W.3d 265, which basically is meant to mirror a theory of relevance.
Where We Are Now and Why Discovery is So Important
This new interpretation by the Texas CCA should begin making sense as we have been going about this so wrong for so many years. The idea that a Judge, a group of appellate judges (I say group because there is no classification like in the animal world, although those less trusting may equate them with a conspiracy which is normally reserved for lemurs) or a group of prosecutors can discern whether an item of evidence or bit of testimony is exculpatory or even relevant without knowing the theory of the defense case has always seemed rather inane. Yet we continue to go through these mind-numbing exercises because we always have done it that way. How many times have you submitted something for an in camera inspection only to be told the Judge who has only read the Probable Cause affidavit, does not find anything in the records submitted to be exculpatory—without knowing the theory of your case.
The liberation by the CCA of the evidence from the hands of the State will only serve to enhance the justice system and it makes sense for an accused to have this information. As I used to instruct young prosecutors and will continue to regarding discovery:
If it helps you, why not disclose it?
If it hurts you, it’s Brady almost by definition.
In practice, the more the defense has to show a client of the evidence against the client, the more trust is built during the attorney client relationship and the easier it is to conduct negotiations when plea offers are on the table. Defense attorneys often deal with people skeptical of the Government. It’s hard to convince these people to trust that the Government has additional evidence that the defense attorney cannot show the client.
Additionally, gone should be the days of a Government worker/prosecutor being trusted with evidence more than a defense attorney solely because of the taking of an oath and the presence of a badge. We all of the same obligations to the bar and the tribunals. The access to evidence should be treated the same and this is the biggest step in a long time.
How to Get Discovery—What is Out There
Under the old 39.14, almost every case began with a notice of representation and the accompanying 39.14 boilerplate discovery motion—which were some of the worst motions imaginable if you ever read them and applied them to the particular case—requests for blood draw evidence in theft cases, requests for accomplice statements in DWIs, referring to clients with the wrong pronouns, etc.
You can still go about serving your “timely request” pursuant to 39.14a that way. In larger jurisdictions, the discovery just starts coming to you. One of the easiest ways to follow up with a prosecutor is with a simple email. Courts generally loathe getting involved in the discovery process so work the system up until the point there is a dispute when you have to involve the judge and then be very specific about what you are seeking and why and what the dispute is about.
So what is out there in cases?
Let’s start in general cases and then move to specific areas.
Patrol Car Dash Cams
Police Body-Worn Cameras—There are No Guarantees in our system—But I can almost guarantee you that you will find gold here
Witness statements including of the accused—on paper, in electronic format, on audio/video
Notes from “Victim/Witness” Counselors
Health Insurance Records—helps identify providers
Prior law enforcement reports involving your client
Prior law enforcement reports involving the complaining witness or other witnesses
As to this prong, I have even had judges complain that if a complaining witness has had contact with law enforcement for ie. Driving While License Invalid (DWLI), the State should not have to turn over the full report. Here’s why that is problematic—prosecutor has an investigator run “handlebys” (a report showing every time a person has been “handled by” law enforcement). This will normally include whether that witness has ever been a suspect, arrested, a prior victim, a prior witness or was just observed at the scene. Defense counsel may receive a printout in an Assault Case involving Family Violence which shows the complaining witness has a report from 2 years ago where she was a suspect in a DWLI case but was not arrested. The Judge states, I’m not going to make the State turn that over—how is that relevant. As it turns out, the defense counsel’s theory of the case is self-defense and the case may turn on who the jury believed was the first aggressor. The prosecutor never pulls the report on the DWLI. So, what could be in that DWLI which is now not looked at? It could be a 6-page report of a stop for DWLI, citation and release—OR it could be I pulled the complaining witness in your case over for failure to signal intent. When I approached the vehicle, I noticed there were two occupants, the female, who was driving, and a male front-seat passenger. The male looked like his face had been scratched and there was some blood coming from his nose. When questioned the passenger said the driver had stopped short earlier and her hit his nose on the dashboard—but that didn’t explain the scratches on his face. I suspected he may have been assaulted but with nothing else to go on, issued the driver a citation for DWLI because she didn’t have a license and I let the male drive them to their destination.
Now there’s a problem. Now this is starting to look like Brady but no one ever saw it because the State refused to turn over the report. Fight for this evidence—it’s important.
Offers/agreements between the State and accomplice/cooperating witnesses
Grand Jury Testimony
GJ Powerpoint Presentations including “Orientation”
Law Enforcement Disciplinary Records
Law Enforcement Training Records—can get some with an open records request on TCLEOSE website
Text messages and emails between officers
The paper case file and the electronic case file of the Detective—they are often different
Jail Calls of Co-Defendants/Cooperating Witnesses
Mail and Emails from incarcerated/cooperating witnesses
Handbook and SoPs of Law Enforcement Agency
Information related to the case from Fusion or Task Force Units
Call Detail Records
Computer Forensic Report and Raw Data
Law Enforcement reports on
- People Involved (Accused complaining witness, other witnesses)
- The address involved
- Any vehicles involved
Raw data from all testing conducted at laboratories
CVs of testifying experts
Pictures from Crime Scene Units
Pictures taken by individual officers at the scene
Pictures taken by the Medical Examiner’s Office—Autopsy and Incident Scene
Accident Reconstruction Reports
Air Bag Control Module Report and Raw Data
GPS Data from Seized Vehicle
EMS/Fire Dept Run-Sheets
Computer Aided Dispatch–CAD Report
Assault Victim Statement
Assault Victim Statement—Strangulation Supplement
Child Advocacy Center Interview of Child
Are the Interview Rooms for Complaining Witnesses Paid for By Third Party Organizations?
Does the DA’s Office have a contract with its testifying experts for the year?
Be creative and as technology evolves so will the Discovery available. Remember—the worst anyone can say is No.
Watkins is a new opinion and is a shift in mindset for the Texas Criminal Courts. There is good reason to believe much caselaw will evolve from this point forward. You must read the opinion and re-read it because it goes over so much information and should now be seen as the starting point and roadmap for most criminal discovery arguments going forward.
Exercise the right to have the State narrow what it tends to admit if the evidence is voluminous. In re State ex rel. Skurka, 512 S.W.3d 444 (Tex. App.—Corpus Christi – Edinburg [13th Dist.] 2016) is instructive. The Court in denying the State’s request for mandamus relief held that a trial court’s order that the State disclose prior to trial which specific jail recordings of the accused it would present as evidence at trial did not improperly require the State to create discovery materials not within its possession, custody or control, but rather required the State to identify which previously-produced discovery materials were likely to be used at trial. Moreover, the order did not require the State to produce data protected by the work product doctrine.
Equity is on the side of the accused. If the accused is indeed presumed innocent, should not the innocent person be afforded the opportunity to view the evidence against the person as soon as practicable? What is the harm in so doing? If we are not at liberty to share addresses and phone numbers of the witnesses/complainants with the accused anyway, there becomes less and less to No argument as to why the information cannot be provided almost immediately.
After 23 years of practice I am yet to hear a valid argument for withholding discovery beyond the standard, that’s the way it’s always been done. Watkins says, No More.
For any questions, my email address is: firstname.lastname@example.org
Good luck out there!
BRAND & RESENDEZ LAW
5900 Balcones Drive, Suite 260
Austin, TX 78731
P: (512) 494-4070
From your first meeting in our firm, we know you will recognize this is more than what you expected out of a law firm. We pride ourselves on professionalism in and out of court, our accessibility (our clients know they can set up an appointment and speak with us when they would like and will often email us directly about any questions or concerns), and our passion for the law. Contact our criminal defense team today by calling (512) 494-4070 or requesting a free consultation online now.
Steven Brand is a Board Certified criminal defense lawyer who graduated cum laude from the Benjamin N. Cardozo School of Law in New York City, achieving distinction there as a member of the Order of the Coif. He holds a Bachelor’s Degree in Business Administration from the University of Michigan. During law school, Mr. Brand studied under attorney Barry Scheck, a nationally renowned death penalty lawyer and founder of the first innocence project. Mr. Brand is admitted to practice law in the states of Texas and New York and the U.S. District Court of the Western District of Texas, Eastern District of New York, Southern District of New York (New York City), U.S. Court of Appeals of the Armed Forces, Navy/Marine Corps Court of Criminal Appeals, Army Court of Criminal Appeals, and the Air Force Court of Criminal Appeals.