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Defense Discovery of Evidence in Criminal Cases In Texas

Dec 13 2024
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Discovery in criminal cases in Texas has a tortured history. The State’s discovery statute, Article 39.14 of the Texas Code of Criminal Procedure, was enacted in 1965. As the Texas Court of Criminal Appeals (CCA) has often noted, the statute did not confer upon a criminal defendant the general right to discovery.

Disclosure was left up to the trial judge’s discretion, as evidenced by the CCA in 1980 in Quinones v. State. The CourtCourt reasoned that a finding of prejudice was critical in determining whether a failure to disclose violated due process under the Brady Rule. As stated by the Quinones Court:

“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accepted a prosecutorial offer to plead guilty in exchange for a recommended life sentence, an offer which had been withdrawn by the time counsel learned about the existence of the tape.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,‘…”

Defense attorneys were often shooting from the hip, learning about evidence during the trial, and left to the good intentions and ethical judgment of prosecutors who notoriously refused to disclose evidence. 

Twelve years later, the CCA instructed in Thomas v. State that “When unsure of whether to disclose the evidence, the prosecutor should submit the evidence to the trial judge for his consideration.”

Under this statutory and constitutional framework, thousands of Texas criminal defendants—hundreds of whom were later exonerated and declared actually innocent—were wrongfully convicted and sent to prison, where they languished for decades. One of those inmates was Michael Morton, who was wrongfully convicted, based upon prosecutorial misconduct, for the 1987 murder of his wife in Williamson County before the CCA declared him “actually innocent” in 2011.

The New Landscape of The Michael Morton Act

In 2013, the Michael Morton Act (MMA) amended Art. 39.14 and dramatically altered the discovery landscape in criminal cases in Texas.

Under Art. 39.14,…” as soon as practicable after receiving a timely request from the defendant the State shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the State in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things 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.”

Under the MMA framework, a criminal defendant can and should file a request for discovery in a timely manner, to which the State must respond to the requests made therein “as soon as practicable.” The State under the MMA is defined as:

  • Any and every political subdivision of the State.
  • All agencies of the State and any political subdivision.
  • Any person or entity under contract with the State.

The discovery notice should seek but not be limited to the following:

  • All materials listed in the Michael Morton Act,
  • Witness statements, including those of the accused that may be on paper, in electronic format, or on audio/video.
  • Notes from victim or witness counselors.
  • Therapy records.
  • “Psych” records.
  • Prior law enforcement reports involving the defendant.
  • Prior law enforcement reports involving the complaining witness or other witnesses.

The State is not required to produce any work-product privileged documents prepared by an attorney for the State or any communications between the State or anyone who works for the State. This information is considered part of the State’s legal strategy or mental impressions and is not subject to disclosure. As for requests to review extremely sensitive material spelled out in Arts. 39.15 and Art. 39.151, defense counsel cannot obtain a copy this material but must review them in a secure facility designated by the State.

The Impact of The Morton Act Provisions

The 2013 MMA amendment created three new significant provisions allowing discovery for:

  1. any offense reports;
  2. any documents, papers, and written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers, and
  3. any books, accounts, letters, photographs, objects, or other tangible things 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.

The State may fulfill discovery of this material by giving defense counsel electronic copies of the documents or information described above.

In addition to the Michael Morton Act, at least four statutory and constitutional authorities demand full compliance with discovery provisions by Texas prosecutors. They are:

  1. “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”   Brady v. Maryland.
  2. “Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”  Texas Code of Criminal Procedure, Art. 39.14(h).
  3. “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”  Art. 2.01, Texas Code of Criminal Procedure.
  4. Prosecutors must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal…”   Texas Bar Rules, Rule 3.09(d) (Special Responsibilities of a Prosecutor)

How Watkins V. State Changed the Discovery in Texas

A key flaw in the Michael Morton Act was its failure to define what constitutes “material” evidence clearly. It would take the CCA eight years to do what the Legislature did not—define the word material as it relates to discovery in criminal cases in Texas.

Now, under Watkins v. State the word material, in addition to its ordinary meaning,  means “evidence ‘having some logical connection to a fact of consequence.’ Whether the evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.”

Article 39.14(h) states, “Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”

Discovery Not Limited to Material

In an expansive way, the CCA concluded that discovery under Michale Morton is broader than required under Brady v. Maryland:

“On the whole, the statutory changes broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. Our Legislature did not limit the applicability of Article 39.14(h) to ‘material’ evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland. This subsection blankets the exact type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not ‘material.’

“Also, the statute requires disclosure of evidence that merely ‘tends’ to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is ‘material’ under Brady v. Maryland.

“Any evidence that does not fall under Article 39.14(h)—that is, any evidence that does not tend to negate guilt or mitigate punishment—must be disclosed upon request without any showing of ‘good cause’ or the need to secure a discretionary trial court order. Disclosure is mandatory and must occur ‘as soon as practicable’ The Legislature also added to the list of discoverable evidence in Article 39.14(a), as well as increased the number of people and entities whose records are subject to discovery With the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not already covered by Article 39.14(h) is the lack of a specific request.”

Prosecutor’s Notes When Prepping Witness for Trial

Under the expansive disclosure doctrine spelled out by the CCA in Watkins and the Court’sCourt’s recent landmark decision in Heath v. State (a prosecutor is responsible for disclosure of Brady material in possession of law enforcement even if they are unaware of such evidence), a prosecutor’s interview notes conducted with witnesses when preparing for trial are subject to disclosure under Michael Morton when the notes contain new or additional details, inconsistent statements or statements that could be favorable to the defense.

Statements made by a prosecutor’s witness during the investigation or charging stages in a criminal case are often remarkably different, or at the very least significantly different, than those given during pretrial preparation interviews. Since the statements made in pretrial preparation may reveal the existence of Brady material or other evidence discoverable under Michael Morton, and since defense counsel does not have to show materiality under the Watkins doctrine, a prosecutor’s interview notes should be disclosed in response to a timely filed discovery notice. Thus, it should be best practice for prosecutors to interview witnesses only in the presence of an investigator, who can reduce such to writing and disclose when appropriate.  This has long been the protocol for federal prosecutors.

The CCA in Watkins stated, “According to the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantee of due process.”

These prosecutorial interview notes should be part of the fair trade between the State and defense in a criminal case now envisioned under the Michael Morton Act.

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    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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    He was very truthful and honest with us very great man I would recommend him and we would use him again
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    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
    Responsiveness, Professionalism, Value …More
  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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