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Landmark Discovery Decision in Texas
Dwayne Robert Heath was arrested in 2017 in Waco, Texas, for the charge of injury to a child. He was indicted on February 15, 2017, and appointed a local attorney named Alan Bennett. On March 13, 2017, Bennett sent an email request to the prosecutor in charge of the case seeking discovery of the evidence in possession of the prosecution. The entire email read: “Can I get discovery on this client? Cause #217-241-C2.”
Article 39.14(a) of the Texas Code of Criminal Procedure provides for discovery in this State. As far back as 1978, it has been the law that “evidence willfully withheld from disclosure under a discovery order should be excluded from evidence.”
This was a limited form of discovery requiring defense attorneys to request specific evidence from the prosecution that fell into a narrow range of items within the discovery statute. Defense counsel bore the burden of showing that the documents sought were relevant to discovery. After this legal wrangling, the trial judge still enjoyed broad discretion about whether to court order discovery of the requested items.
Prosecutors routinely denied discovery or claimed they had an open file policy, but discovery was minimal. Defense attorneys were often limited to hand-copying notes from the State’s file.
The Texas legislature monumentally changed discovery in May of 2013 with the Michael Morton Act, codified in article 39.14(a)—a discovery amendment that expanded the States’ discovery obligation to providing copies of all evidence material to any matter involved in the case that is in possession of the State. Article 39.14 makes the State of Texas responsible for obtaining any requested document “in the possession, custody, or control of the state or any person under contract with the state.” “State,” as used in this statute, includes:
- 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.
Additionally, the State has an affirmative duty to seek all requested items so that a copy may be provided pursuant to the defense’s request as required by Article 39.14.
What also changed was the elimination of the necessity for a “court order” to achieve discovery—a simple request by defense counsel under the Morton Act is sufficient to trigger discovery.
As discussed in Watkins v. State, “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…”
“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.”
The Morton Act also imposes a duty on prosecutors to disclose discovery as soon as practicable after receiving a timely request from the defendant.
However, the problem with the Morton Act amendment is that it does not include a definition for what is “as soon as practicable,” nor any remedies for failure to comply with the request.
That changed on June 12, 2024, when the Texas Court of Criminal Appeals (CCA) addressed those problems in a landmark decision in the Dwayne Robert Heath case. The CCA held that a prosecutor’s duty to disclose exists whether they have knowledge of the evidence or not.
The background facts of the Heath case are these: defense attorney Bennett sent his discovery email request to the prosecutor in March 2017. The prosecutor responded to the request in July 2017. The trial date was postponed three times before it was set on March 29, 2018. Just days before the trial was to begin, the prosecutor learned while interviewing a potential witness on March 18, 2018, that there might be a 911 recording in the case. The prosecutor investigated and determined that such a recording was in the sheriff department’s possession. The prosecutor procured the recording on March 23, 2018, and provided it to defense counsel that same day.
Defense counsel immediately filed a pretrial writ of habeas corpus and motion to exclude the recording as being untimely withheld. The trial court held a hearing on the motion to suppress on the day of the fourth trial setting and just before the commencement of voir dire.
The judge granted Bennett’s motion to exclude.
The State filed an interlocutory appeal of the trial court’s suppression order. At the prosecutor’s request, the trial court prepared findings of fact and conclusions of law.
On appeal, Bennett argued that the State was in possession of the recording because the prosecution’s “possession“ included law enforcement and other related agencies’ files.
Bennett conceded in his arguments that the prosecutor’s failure to produce the recording was not done in bad faith; nonetheless, he argued that that failure did not negate the prosecutor’s duty to ascertain the existence of the recording, and her failure to do so violated the “as soon as practicable“ provisions of 39.14(a).
The prosecutor defended her actions by saying that the District Attorney’s Office was unaware of the 911 call’s existence because the police report only referenced a “call for service” that was answered by a deputy and that she did not search for the tape before learning of its potential existence. Upon learning of its existence, she procured it and immediately turned it over to the defense.
The trial court concluded that these arguments notwithstanding, the prosecutor had a specific duty to ascertain the existence of the recording and produce it to the defense. The remedy for her failure to do so was to suppress the recording because the failure violated the “as soon as practicable“ provisions of Article 39.14(a).
The CCA agreed.
In fact, the appeals court even indicated that a prosecutor’s duty to disclose evidence entails reasonable diligence to uncover evidence they may not know about.
This would require prosecutors to establish and maintain channels of communication with law enforcement to determine if they have any relevant evidence in their possession.
The Heath decision is pivotal in criminal cases in Texas. It forces prosecutors to timely, completely, and without delay produce requested discovery made by defense counsel.
The Heath decision noted, In relevant part, Article 39.14(a) imposes a duty upon the State to produce discovery “as soon as practicable after receiving a timely request from the defendant” excluding the work product of counsel for the State.
The Court held, “that items in the possession, control, or custody of “the state,“ include items in the possession of law enforcement. Moreover, the statute does not speak to the prosecution’s State of mind, nor does it contain any mens rea limitation. Rather, the focus of the statute is on the State’s obligation and ability to disclose evidence in the State’s possession, not whether a specific prosecutor knew that law enforcement had the evidence in its possession. Thus, Article 39.14 can be violated by a prosecutor’s non-disclosure of evidence due to law enforcement’s failure to turn evidence over to the prosecution, even if law enforcement’s possession of evidence is unknown to counsel for the State.”
Who is “The State“ for Purposes of Article 39.14?
“Article 39.14’s use of the word “state“ means exactly what one would think it means—the “State of Texas.“ And while the statutory reference to the State of Texas necessarily includes the prosecutor as a representative of “the state“ just as a reference to the “defendant“ necessarily includes a reference to the defendant’s representative, by itself, the word “state“ refers to the State of Texas as a party to the lawsuit. It is not limited to the prosecutor trying the case…”
“This interpretation is also consistent with Article 39.14(a)’s use of the word “state“ in the phrase “in the possession, custody, or control of the state, or any person under contract with the state…“
“The more natural reading of the statute is that the “state,“ including law enforcement as well as third-party contractors with the State such as crime laboratories, has a duty to disclose evidence.”
“As Soon As Practicable“ by its Plain Terms Has No Knowledge Requirement
Additionally, the Court held, “that under Article 39.14, “the state“ means the State of Texas, which includes law enforcement agencies, and imposes a duty upon prosecutors as representatives of “the state“ to disclose discoverable evidence “as soon as practicable,“ meaning as soon as the State is reasonably capable of doing so, upon receiving a timely request from the defense.”
“Consequently, we hold that under Article 39.14, “the state“ means the State of Texas, which includes law enforcement agencies, and imposes a duty upon prosecutors as representatives of “the state“ to disclose discoverable evidence “as soon as practicable,“ meaning as soon as the State is reasonably capable of doing so, upon receiving a timely request from the defense.”
Does a Trial Court have the Authority to Exclude Evidence for a Violation of Article 39.14?
The Court then held that a trial court may exclude evidence disclosed in violation of 39.14. “We agree with the court of appeals’ conclusion that the old concept of ‘bad faith‘ no longer applied to Article 39.14 given the “substantive change to the process for the disclosure of requested items.” As the lower court explained, “[i]t is no longer sufficient for the State to wait until it gets ready, or when the prosecutor decides to prepare the case for trial, to then search out and produce properly requested discovery.” Article 39.14(a) now contains a timeliness requirement, and a prosecutor may inadvertently violate the statute by failing to exercise reasonable diligence in seeking out discoverable items.
As the CCA concluded:
“Under Article 39.14, “the state“ means the State of Texas, not an individual prosecutor or a district attorney’s office. While the statutorily imposed discovery obligations fall on the prosecutor as the State of Texas’ representative in criminal cases, the obligation to produce material evidence extends to evidence that is in the possession of law enforcement agencies. As such, the prosecution may inadvertently violate Article 39.14 by failing to disclose evidence that is in the possession of law enforcement because it has an obligation to ascertain what evidence is available to it, as well as an obligation to disclose that evidence to the defense as soon as practicable upon timely request. Here, the State violated its duty under Article 39.14 by failing to timely disclose evidence of a 911 call made by the complainant’s mother on the date of the alleged offense. Though the prosecutor was unaware of the recording when Appellee made his discovery request nearly fourteen months prior and on the three separate occasions when the State announced it was ready to proceed to trial in this case, the State was obligated to find out what evidence was available to it. Under these circumstances, the trial court acted within its discretion to exclude the 911 call based on a violation of the discovery statute. Accordingly, we affirm the judgment of the court of appeals.”
The Heath decision is a landmark decision impacting discovery in Texas criminal cases. It allows courts to exclude evidence either obtained or disclosed in violation of the discovery statutes’ “as soon as practicable” requirement. The ruling finally added teeth to the Michael Morton statute and will help hold prosecutors accountable for discovery violations and lack of due diligence in preparing their cases and disclosing evidence to the defense.
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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!
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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.
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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
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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.
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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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