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TEXAS DISCOVERY PROCEDURES
Discovery, Brady Rules in Need of Reformation to Prevent Wrongful Convictions
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Last month the Timothy Cole Advisory Panel (“Panel”), which was created by the Texas Legislature in its 2009 session to develop recommendations for the Texas Task Force on Indigent Defense to help prevent wrongful convictions, issued its “report” calling for changes in the state’s eyewitness identification procedures, custodial interrogations, discovery procedures, post-conviction proceedings, and various innocence projects that receive state funding.
In two previous posts, we have warmly embraced the Panel’s recommendations concerning eyewitness identifications and custodial interrogations. With this post we also embrace the Panel’s recommendation that “the State of Texas should adopt a statewide discovery policy that is mandatory, automatic, and reciprocal, and requires either electronic access to or photocopies of materials subject to discovery” but there are aspects of the Panel’s report concerning “discovery procedures” that need to be clarified.
On page 24 the Panel states that Brady v. Maryland, a 1963 U.S. Supreme Court decision which held that federal due process requires the prosecution to disclose favorable evidence upon request by a criminal defendant that is material to either guilt or punishment, “is an inefficient tool to prevent wrongful conviction because Brady motions are not raised until after a defendant has been convicted of a crime and new evidence that was in the possession of the prosecution comes to light.”
That statement, as written, is neither factually nor legally correct.
Brady requests must be made pre-trial in the State of Texas through a proper motion requesting exculpatory material both in general form and with as much specificity as possible. Brady material and other discovery can be requested the following motions: 1) boilerplate motion for discovery; 2) motion for discovery and preservation of specific evidence; 3) motion requesting prosecution to file a list of physical evidence; 4) motion for duplicate photographs; 5) motion for discovery and preservation of specific canine evidence relating to canine drug search; 6) specific motion for exculpatory and mitigating evidence (Brady material); 7) motion for discovery of crime stoppers information; 8) motion for discovery of victim impact evidence; 9) request for notice of state’s intention to introduce punishment evidence pursuant to Art. 37.07 (Code of Criminal Procedure); 10) motion in limine (extraneous offenses); 11) request for notice of state’s intention to offer extraneous offenses pursuant to Rule 404(b)[Rule of Evidence]; 12) motion for pretrial hearing on admissibility of extraneous offenses; 13) written objections to admissibility of extraneous offenses and requesting for findings of fact and conclusions of law; 14) request for notice of extraneous offenses in child abuse case; 15) request for notice of state’s intention to use evidence of extraneous offenses or acts pursuant to Art. 38.37 C.C.P.; 16) request for notice of state’s intention to use evidence of impeachment pursuant to Texas Rules of Evidence 609; 17) request for notice of state’s intention to use certified copies of official documents or business records; 18) comprehensive request for notice of state’s intention to introduce evidence under rules of evidence and code of criminal procedure; 19) notice of intent to introduce evidence of extraneous offense; 20) punishment evidence or prior conviction information, motion for discovery of punishment evidence; 21) motion to list state’s witnesses [all persons contacted]; 22) motion for discovery of criminal records of all state’s witnesses; 23) motion to produce witness statements; 24) motion to require police to maintain personal notes; 25) motion to require police to maintain and produce recorded communications; 26) application to take deposition of witness and notice thereof; 27) application to take deposition of witness by written interrogatories and notice thereof; 28) motion for discovery of grand jury testimony; 29) motion for discovery of defendant’s previous trial; 30) motion for transcript of co-defendant’s trial, motion to reveal agreements entered into between the state and witnesses; 31) motion requesting disclosure of expert witnesses; 32) designation of expert witness; 33) motion for voir dire of expert witness and for pretrial ruling on admissibility of expert testimony; 34) motion for approval of expert witness funds, motion for independent forensic testing; 35) motion for defendant’s access to physical evidence; 36) motion for forensic identity testing; 37) motion for approval of funds for court-appointed investigator; 38) motion for approval of mitigation specialist funds; 39) motion for approval of forensic psychologist funds; and 40) motion for additional investigative funds.
These are all recognized pre-trial discovery motions found in Texas Criminal Forms, Vol. l, Robert Gill & Mark G. Daniel (James Publishing). Motion Practice in Criminal Cases in Texas is another excellent pre-trial guide for help in formulating discovery requests. The Federal Public Defender’s Office in Washington, D.C. also offers an excellent “motions brief-bank” for federal practice.
The Panel does not clearly distinguish the difference between requests for discovery of evidence and the prosecutorial failure to disclose exculpatory evidence. The U.S. Supreme Court has held that a criminal defendant does not enjoy a “constitutional right to discovery in a criminal case.” Texas appellate courts subscribe to the same constitutional principle. However, in the wake of Brady and its extended progeny, the Texas Legislature enacted Article 39.14 of the Texas Code of Criminal Procedure which permits a criminal defendant to file pre-trial motions for discovery while vesting the trial court with the discretion to decide what evidence in the possession of the prosecution is discoverable. For example, Art. 39.14 does not impose on the prosecution the burden to develop evidence that might be exculpatory to a criminal defendant; nor does it give a criminal defendant the right to search for potential DNA exculpatory evidence in the police property room following conviction; nor to secure forensic DNA testing of evidence collected by the State prior to conviction.
These restrictions notwithstanding, an aggressive pre-trial discovery motion practice can lead to Brady violations which are then decided in the post-conviction process, either on direct appeal or in habeas corpus proceedings following direct appeal.
Newly discovered evidence claims must be presented in a motion for new trial pursuant to Art. 40.001 of the Texas Rules of Criminal Procedure. A motion for new trial may be filed before but no later than 30 days after imposition of sentence pursuant to Rule 21 of the Texas Rules of Appellate Procedure. Newly discovered evidence claims discovered after the 30-day new trial limitation period must be filed in a writ of habeas corpus pursuant to Art. 11.07 of the Texas Code of Criminal Procedure.
The prosecutorial failure to disclose evidence material to either guilt or punishment is a different beast from discovery requests presented to the trial court. These “Brady violations” are generally decided at the appellate level under clearly established case law jurisprudence. For example, the U.S. Supreme Court said in 1985 that evidence is material if there is a “reasonable probability” that disclosure of the evidence would have produced a different verdict. Just last year the Court reinforced its rule that a “reasonable probability” means the withheld evidence could have altered at least one juror’s assessment of the evidence. This assessment process requires courts to take into account not only the probative value of the suppressed evidence but the cumulative effect it had in light of all the other evidence. Against this legal backdrop, the Fifth Circuit Court of Appeals held that a witness changing testimony about details of struggle was material because it could have been used to impeach key eyewitness and the outcome could have been different.
The key to understanding Brady is to recognize its limitations. Brady does not require the prosecution to disclose or make available to the defense all the evidence in its file. The Georgetown Law Journal, Annual Review of Criminal Procedure (2010, 39th Ed.), offers an excellent guide as to what the prosecution does not have to disclose [note 1111, p. 360-61]:
- No Brady violation for failure to disclose semen analysis showing defendant could not have been rapist because prosecutor gave defendant lab reports containing raw data;
- No Brady violation for failure to reveal witness’s cooperation with FBI because defendant knew witness met with FBI for 45 minutes, could have cross-examined witness, and could have called other witnesses to obtain information;
- No Brady violation because government provided defendant with all information on defendant’s payment to co-conspirator despite government’s failure to disclose co-conspirator’s theory that payments were not as large as defendant previously thought; and
- No Brady violation because government disclosed lab reports that did not show semen despite failure to provide underlying lab test documents which ultimately led to DNA profile of attacker inconsistent with defendant.
These cases reflect that Brady, as a discovery device, does not relieve a criminal defense attorney of his/her responsibility to develop evidence favorable to his/her client from available sources other than the prosecution’s files. The Sixth Amendment right to counsel entails effective representation by counsel who conducts a diligent investigation to discover exculpatory or mitigating evidence.
That said, we must point out that Texas prosecutors have a long, and sordid, history of suppressing mitigating evidence, utilizing perjured testimony, and erecting procedural roadblocks to prevent criminal defense attorneys from developing legitimate and meaningful defense strategies. That’s why we wholeheartedly embrace the findings of 2009 The Justice Project report, “Convicting the Innocent: Texas Justice Derailed,” which concluded that Texas’ discovery statutes are “so minimal that they fail to guarantee the opportunity for evidence to be fully investigated and meaningfully challenged.” In support of this conclusion, the Justice Project pointed out that seven of Texas’ first 39 DNA exonerations involved suppressed evidence and the defendants’ inability to prepare for trial.
The American Bar Association’s Standards for Criminal Justice: Discovery and Trial by Jury (3ed., 1995) have been fully adopted by only five states, according to the Panel. “The majority of the remaining states have standards more in line with either Federal Rule 16 (providing the most limited discovery) or some area between the two standards,” according to the Panel. “Current Texas law, however, is considerably more restrictive than Federal Rule 16.”
In reaching that conclusion, the Panel pointed to a 2004 report, Treatment of Brady v. Maryland in United States District and State Courts’ Rules, Orders, and Policies, to the Federal Judicial Center which found that “Texas consistently falls into the narrowest category of discovery policies. Texas requires a written motion, and is also one of only ten states that places additional conditions on discovery and requires the defendant to demonstrate that the materials are necessary to the preparation of the defense or “show ‘good cause.’”
While the Panel did not specifically recommend that the ABA’s discovery standards be uniformly adopted in the State of Texas, it did refer to them with approval. In fact, the Panel went a step beyond the ABA standards to cite with approval a proposal by The Justice Project that a “’discovery certificate should be filed by the District Attorney’s office with the court during pretrial procedures and should specify when evidence was exchanged and by what method of delivery.’ This type of certification creates a court record stating that both defense and prosecution have fulfilled their discovery responsibilities, provides documentation of information received from third parties, and makes it more difficult for evidence to be willfully suppressed.”
The responsibility for complete and comprehensive discovery in the State of Texas rests with the legislature. According to the Panel, some counties, like Tarrant County, have “open file” discovery policy that “utilizes electronic case filing system to manage the discovery process,” while other counties, such as Williamson County, fight any efforts to modernize the discovery process that would provide defense attorneys with greater access to evidence. It’s time for the Legislature to “modernize” Art. 39.14, and while we doubt such a modernization would include adopting all of the ABA discovery standards, it should at least bring Texas into the mainstream with something similar to Federal Rule 16.
But regardless of what the Legislature may or may not do, defense attorneys still have a professional obligation to pursue an aggressive discovery strategy tailored to the specific defense they are pursuing. While this strategy may not produce all the evidence they request through specific motions, it at least provides a gateway into the appellate process should their client be convicted and may provide a reasonable basis for a new trial if the suppressed evidence would have altered at least one juror’s vote.
In addition, law enforcement, including prosecutors, should be penalized, personally, when they fail to disclose known evidence which tends to weaken any aspect of the government’s case. Individuals should be held responsible for intentional obstruction/access to exculpatory and mitigating evidence that causes an innocent person to be wrongly convicted. Civil statutes for personal injuries and economic losses, disciplinary rules effecting licenses to work in the legal system and criminal statutes criminalizing such conduct should be adopted that punish individuals who intentionally stack the cards in the criminal justice system by hiding or failing to disclose evidence. A prosecutor has the responsibility to see that justice is done, and not simply be an advocate (Comment 1, Rule 3.09, Texas Disciplinary Rules of Professional Conduct). It is reprehensible that criminal trials have become games in which some prosecutors feel it is OK to lie, cheat and steal to win.
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Testimonials
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3730 Kirby Drive # 750, Houston
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Im impressed. This guy was polite and professional and most important...he listened.
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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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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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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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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He explained my case better then any other lawyerPositive
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Very informative
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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.
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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🙏🏼🙏🏼
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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.
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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.
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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
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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.
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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
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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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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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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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!!!!!!
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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.
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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!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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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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