Criminal Defense Discovery in Texas After Heath

Criminal defense attorneys across the state welcomed the decision of the Texas Court of Criminal Appeals (TCCA) this June when the opinion came down in The State Of Texas v. Dwayne Robert Heath, Appellee, Cause No. PD-0156-22.  (A dissent to the motion for rehearing was filed on September 25, 2024).

Here are the details of the Heath opinion and how this impacts criminal matters throughout the Lone Star State.

Texas Code of Criminal Procedure Article 39.14: The Michael Morton Act

Most defense lawyers are well aware of the history of the legislation popularly known as The Michael Morton Act and codified as Texas Code of Criminal Procedure Article 39.14 (TCCP 39.14).  It’s a textbook example of prosecutorial misconduct.

• For more, read our discussions in Prosecutorial Misconduct Spotlighted in Michael Morton Case as Texas High Court Releases Innocent Man and New Texas Laws Targeting Prosecutorial Misconduct: The Michael Morton Act and new Tex Gov’t Code 81.072(b) Limitations – Do They Really Help Texas Citizens?

In sum, Michael Morton was wrongfully convicted of murdering his wife, Christine, and spent 25 years behind bars before he regained his freedom.  It was shown that the prosecutors kept back Brady evidence from the defense that would have cleared Mr. Morton of wrongdoing.  This involved things like DNA found at the scene; a credit card used after the murder; his son’s witness statement; and more.  For more, read “From Michael Morton’s Wrongful Conviction to Exoneration (Timeline),” written by Annie Daniel and Johnathan Silver and published by the Texas Tribune on August 13, 2016.

In response to this travesty of justice, the Texas Legislature passed the “Michael Morton Act,” to change criminal defense discovery.  This is TCCP 39.14, the focus of the Heath decision.

Under the Michael Morton Act, the defense must ask for discovery.  Then the State must allow the defendant access to the requested discovery or produce the information “as soon as practicable after receiving a timely request from the defendant.” TCCP 39.14  This includes evidence “material to any matter involved in the action and that are in possession, custom, or control of the state or any per on under contract with the state.”

Background to Heath

The case came to the TCCA from our 10^th Court of Appeals, setting in McLennan County, where an appeal was heard involving a 2016 case filed against Dwayne Robert Heath for violation of Texas Penal Code §22.04(a)(3)(injury to a child involving bodily injury).  Mr. Heath was appointed a defense attorney to represent him.

The 911 Call Recording

Shortly after being appointed, the defense lawyer was on the job, sending over a request for discovery to the prosecutors over at the District Attorney’s Office.  The opinion quotes the March 23^rd email, which contained the cause number and the simple message: “[c]an I get discovery on this client?”

Before going down a rabbit trail about how succinct this request may be, please note that the TCCA notes (footnote 3) that it is “assumed without deciding that it was sufficient.” Also noted: the State never objected, at any time, to the request insofar as an argument that it might be “…insufficiently detailed to trigger the prosecutor’s duty to provide discovery under the statute.”

Discovery was forthcoming.  The defense lawyer received things like law enforcement records, child protective services records, and photographs.  Findings of fact confirm this happened before July 20^th.

Hatch got called to trial three times. He had requested a jury trial.  The State announced ready each time.  However, it was not until the fourth trial date that they entered the courtroom because they had been reset repeatedly due to other trials.  That was on May 29, 2018.

Here’s where the water gets deep.  On May 23^rd, the ADA found out about a 911 call from the complainant’s mother that happened on the date that the alleged crime took place.  Six days before that trial date. So, the prosecutor emails the criminal defense lawyer with the message that there was more discovery to be had.

Defense Motion to Suppress the 911 Call As Violation of Michael Morton Act

Four days before the trial, two days after that email message, a pre-trial Application for a Writ Of Habeas Corpus and Motion To Suppress were filed by the defense.  The argument was that the mother’s 911 call was evidence improperly withheld in violation of Article 39.14 of the Texas Code of Criminal Procedure, along with violating assorted constitutional protections (i.e., Sixth, Ninth, and Fourteenth Amendments of the United States Constitution; Article 1, sec. 10 and 19 of the Texas Constitution).

During pre-trial hearings on the day of trial, the trial court judge heard arguments and evidence, and ruled on the Motion To Suppress.

The defense’s argument

The defense argued that this evidence was made available 14 months after that initial email discovery request and six days before trial; accordingly, it violated the Michael Morton Act (TCCP 39.14) and must be excluded.

Key here:  the defense attorney argued that “the State” as defined in TCCP 39.14 includes law enforcement, not just the ADA prosecuting the case at trial.  So, since the 911 call had been in the possession, custody, and control of the Dispatcher for the Sheriff’s Office that received it, it had been in the State’s possession since 2016.

The prosecution disagreed

The ADA argued that “the State” as referenced in the statute applied to the District Attorney’s Office.  And that the ADA was not aware of any 911 call until she met with the mother and was told a call had been made.  The police report referenced a “call for service,” which a deputy answered.  The ADA told the court that she asked for the 911 recording a few days after meeting with the mother.  As soon as she had the recording, she provided it to the defense.

And, the ADA also argued there was no showing of bad faith. Accordingly, all that should happen is a continuance of the case so the defense had time to review the evidence.  The 911 call should not be excluded.  No violation of the Michael Morton Act here.

What about bad faith? 

The defense lawyer’s position was that he need not prove it up.  Because “the State” as provided by the statute includes law enforcement, there was no allegation that the prosecutor had acted in bad faith.  The problem here was timing:  the State had possession of the 911 call recording for 14 months after that discovery request.  Too late, period.  (The prosecutor’s counter?  The law only asks for “as soon as practicable” once the prosecution knows about it.)

Trial Court Ruling

The trial court judge agreed with the defense and granted the motion to exclude the 911 call recording from evidence.  Defense announced ready for trial.  The ADA asked for a stay to take the matter up on appeal.

Findings of fact and Conclusions of Law were filed.  They appear in their entirety in the Heath opinion.

The Heath Decision

The case first came to the High Court after the appellate court heard the matter, and found that the defense lawyer’s email requesting discovery was not insufficient to trigger the requirements of Article 39.14. This meant that the ADA had no duty to comply with the discovery request.  The appellate court did not rule on the defense argument regarding the scope of the phrase “the State” as it appears in the Michael Morton Act.

The defense appeal pointed this out to the TCCA in discretionary review and the TCCA held that “… the court of appeals erred to address an issue not presented to the trial court or raised by the parties on appeal. The State had not argued before the trial or appellate court that counsel’s discovery request was inadequate or failed to trigger its duty under Article 39.14. Thus, we held the issue was not preserved and the court of appeals erred to reach an unassigned error that was subject to procedural default. We reversed and remanded the case to the lower court for a resolution of the issues raised by the State.” Heath, footnotes omitted.

Appeals Court on Remand

On remand, the appeals court affirmed the granting of the suppress motion by the trial court judge.  Its reasoning, according to the Heath opinion, involved:

1. the legislative amendments to Article 39.14 substantively changed the process for discovery disclosures and, as a result, “once discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it in a timely manner.”
2. a failure to “at least inquire about the existence of discoverable items in response to a proper request in a timely manner is all the evidence necessary to show that the failure to timely produce the item in discovery was due to what was previously characterized as a `willful violation’ or `bad faith.‘”
3. “no dispute that the 911 call was in the possession of the State, which is not limited to the prosecutor, but includes law enforcement and related agencies… [t]he prosecutor need not know what it is that is not being produced, but the failure to even look to see if there is something responsive to the request in light of the duty to search out responsive discovery is adequate for the trial court to fashion a remedy appropriate to the situation.”
4. the trial court’s remedy of excluding the recording was not an abuse of discretion considering the State was presumably ready to proceed to trial without the 911 call at three prior jury trial settings. This was an appropriate sanction for the failure to timely produce the recording and affirmed the trial court’s granting of Appellee’s motion to suppress.

State Sought Discretionary Review from the TCCA

This is how the case came before the TCCA: the State, after this lower appellate court decision, asked the TCCA for discretionary review on two issues:

1. Has the State’s statutory duty to disclose evidence “as soon as practicable” been violated if the prosecutor fails to disclose an item of evidence the D.A.’s Office does not know exists but that has been in police custody for months?
2. If so, does the trial court have authority to impose an exclusionary sanction when there has been no bad faith or demonstrable prejudice to the opposing party and the statute provides for no such sanction?

After a lengthy analysis, the TCCA resolved that the Michael Morton Act WAS violated. From the High Court (footnotes omitted):

The trial court concluded that the State violated Article 39.14(a) because the State’s duty to disclose extends to discoverable items that are in the possession, custody, and control of “the state,” which includes items in the possession of law enforcement agencies. The trial court also concluded that the prosecutor had a specific duty to ascertain what discoverable evidence was available and disclose it to the defense as soon as practicable. And, finally, the trial court concluded that the recording of the 911 call was not disclosed “as soon as practicable” given that law enforcement had possession of the recording for eighteen months and the defense submitted a timely request for discovery fourteen months prior to the fourth trial setting. Under these facts, we hold the trial court did not abuse its discretion in determining that the State had violated Article 39.14 by failing to disclose the 911 call as soon as practicable after the defendant’s request for discovery….

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 get 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.

Conclusion

In sum, the Texas Court of Criminal Appeals has clarified the parameters of Texas Code of Criminal Procedure Art. 39.14 in Heath.  They are:

1. The statute must be read to include law enforcement agencies.
2. The statute must be understood that its phrase “as soon as practicable” means no delay.
3. The prosecution may “inadvertently violate” the law by failing to disclose evidence because it has “an obligation to ascertain what evidence is available to it.”
4. The defense lawyer has the right to argue for evidence to be excluded when it is not timely disclosed pursuant to these Heath
5. There is no need for the defense lawyer to prove up any kind of bad faith.
6. There is likewise no requirement for the defense to show prejudice in order to successfully argue for exclusion under Heath.

Of note: first, the dissent argues that when the Texas Legislature intends to include law enforcement, it specifically includes them. This may be important to remember in future matters.

Secondly, the defense may have dodged a bullet here because of the succinctly email discovery request sent at the get-go. That was a winning argument to the Court of Appeals but as the TCCA pointed out, not advanced by the State in this case.

Third, it is important to remember the trial court’s discretion as a cornerstone.  It may be possible for prosecutors in the future to argue for a continuance as an appropriate remedy rather than excluding the evidence.  For more on this consideration, read the commentary of Heath provided by the Texas Criminal Defense Attorneys’ Association here.

Also see:

• What is a Motion to Suppress?
• Witness Corroboration When Defending Sexual Assault Charges in Texas
• Prosecutorial Misconduct: How Bad Is It? Dallas Chief Investigator Pleads Guilty to Taking Bribe
• Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to the Defense.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read “The Early Part of a Texas Criminal Case in State or Federal Court.”