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Evidence

Watkins 39.14 Texas Evidence

What Evidence Must a Prosecutor Disclose to the Defense?

By | Evidence

New CCA Opinion – Watkins v. State – Clearly Interprets the Duty of the State in Discovery.

Watkins 39.14 Texas EvidenceProsecutors in Texas must disclose almost all of the evidence in their possession to the defense. Disclosure is the rule and not the exception in Texas.1 Section 39.14(a) of the Texas Code of Criminal Procedure requires the prosecution to disclose anything that “constitutes or contains evidence material to any matter involved in the action. . .”2

The Texas Court of Criminal Appeals in Watkins v. State (see opinion HERE) recently interpreted the word “material” to mean the equivalent of “relevant,” while interpreting the phrase, “any matter involved in the action,” as covering “any number of subsidiary issues impacting the outcome of the proceedings.”3 This interpretation requires Texas prosecutors to disclose virtually all of the evidence in their possession—more than they are mandated to under the federal Constitution as interpreted by the Supreme Court in Brady v. Maryland. In fact, for some types of evidence, the statute does not require the evidence to meet any materiality requirement.4 According to § 39.14(h), evidence tending to negate the guilt or mitigate the punishment of a defendant must be disclosed, regardless of whether the evidence is considered material or requested by the defense.5

Article 39.14 and the case law that accompanies it effectively establish an open-file policy between the prosecution and defense. As the Watkins court put it: “[w]ith the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not [exculpatory in nature] is the lack of a specific request.”6

The “materiality” language that the Watkins court addressed is actually language that was carried over from a previous version of Article 39.14—language with its own case law that prosecutors and trial courts carried into practice even after the statute was amended.

How did Prosecutors Interpret 39.14 Before Watkins?

The current version of Article 39.14 came about through the Michael Morton Act, signed into law by Governor Perry in 2013. This bill was a response to the case of Michael Morton, a man wrongfully convicted for the murder of his wife in 1987 after the prosecutor in that case withheld evidence that could have proven his innocence. Morton was exonerated in 2011 after DNA evidence revealed that someone else committed the murder, and the state legislature took up the task of passing a complete overhaul of discovery procedure in Texas.

Because the same language— “material to any matter involved in the action”—was retained by the Morton amendments, confusion persisted among some attorneys about whether the pre-Morton “materiality” jurisprudence is properly attributed to the new, post-Morton version of Article 39.14. However, as the Watkins court addressed, those pre-Morton cases never actually spoke to the issue of what “material” actually meant.7

The Confusion Surrounding “Material”

You see, the pre-Morton Article 39.14 gave trial courts the discretion whether to order the prosecution to disclose evidence upon a motion showing good cause from the defense.8 The pre-Morton “materiality” jurisprudence was inextricably linked with the standard for determining whether a trial court abused its discretion in refusing to issue such an order, and it did not have anything to do with the phrase, “material to any matter involved in the action.”9

The standard for determining whether a trial court abused its discretion in this way was whether the judge’s ruling deprived the defendant of access to evidence that was material to the defendant’s defense.10 “Material,” in this sense, was defined “’under Texas law in the due process terms employed by the Supreme Court in United States v. Agurs.’”11 This meant that a trial judge abused his or her discretion in refusing to order the disclosure of evidence when it was exculpatory in nature.12

Watkins Clearing Things Up

As we now know, the procedure that discovery followed before the Morton amendments was completely removed from Article 39.14, and the “materiality” jurisprudence that was tied to it went out the door as well.13 Because of the confusion that accompanied the judicial use of similar language in close contexts pre-Morton, it is understandable if some prosecutors may have—before Watkins—interpreted the, “material to any matter involved in the action,” language as being loaded with the pre-Morton jurisprudence. Other prosecutors, as shown in Watkins below, applied their own limiting interpretations to the language.

In Watkins, the defense counsel sent a discovery request to the prosecutor pursuant to § 39.14 asking for, “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.”14 He “also requested notice of the State’s intent to offer any extraneous offenses, which the prosecution provided.”15 Watkins was convicted of second-degree possession of a controlled substance, and during the punishment phase of trial, the state sought to introduce 34 exhibits for the purpose of proving up Watkins’ prior felony convictions for enhancement purposes.16 The defense objected—the prosecutor did not disclose the exhibits to the defense because he did not believe Article 39.14 applied to punishment.17 The Trial court overruled the objection, allowing the evidence to be admitted.18

The issue surrounding the prosecution’s non-disclosure eventually worked its way up to the Court of Criminal Appeals, where the Watkins court seized the opportunity to review the requirements of Article 39.14 in light of the Michael Morton Act amendments. In short, the Court laid out the history of Article 39.14 explained above, and it clearly established that Texas now has disclosure requirements that track the spirit of the Michael Morton Act.19

[1] Watkins v. State, NO. PD-1015-18 (Tex. Crim. App. 2021).
[2] Tex. Code Crim. Proc. Ann. art. 39.14(a) (West 2017).
[3] Watkins, at 24-25.
[4] Tex. Code Crim. Proc. Ann. art. 39.14(h) (West 2017).
[5] Id.
[6] Watkins, at 23.
[7] Id. at 35.
[8] TEX. Code Crim. Proc. art. 39.14 (2009).
[9] Watkins at 35.
[10] Id. at 41-42.
[11] Id. at 40 (quoting United States v. Agurs, 427 U.S. 97 (1976)).
[12] Id. at 41.
[13] See generally Watkins.
[14] Watkins at 4.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 5.
[19] See generally Watkins.

Tampering with Evidence Texas 37.09

Tampering with Evidence under Texas Law | Section 37.09 TX Penal Code

By | Evidence

Tampering with Evidence Texas 37.09During routine traffic stops, police officers sometimes end up arresting individuals for the third-degree felony offense of Tampering with Evidence. How does this happen you ask? If, during the course of a traffic stop, an officer observes the driver toss an item or two out of the window, and those tossed items are later determined to be drugs and/or drug paraphernalia, the officer might just arrest the person for tampering with evidence pursuant to section 37.09 of the Texas Penal Code. The important question though, is whether section 37.09 was intended to prohibit this type of conduct?

What is the Purpose of Section 37.09 – Tampering with Evidence?

Texas Penal Code Section 37.09 provides:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
     (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;  or
     (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Texas courts have found that the purpose of section 37.09 is to uphold the integrity of our criminal justice system. 20 Tex. Jur. 3d Criminal Law: Offenses Against Public Administration § 63 citing Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010); Haywood v. State, 344 S.W.3d 454 (Tex. App.—Dallas 2011 pet. ref’d). This includes prohibiting anyone from “creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.” Id. However, section 37.09 is not without limitation.

What is the Scope of Section 37.09?

Early case law suggests the scope of 37.09 is very limited. But, as you will read below, the Court of Criminal Appeals rejects this notion by allowing the fact finder the ability infer the intent to tamper.

In Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) the court of appeals held that section 37.09 requires a defendant to know that the item “altered, destroyed, or concealed, was evidence of an investigation, that is pending or in progress, as it existed at the time of the alteration, destruction, or concealment.” Id. In this case, the defendant threw a marijuana cigarette out of the window while he was being pulled over for speeding. Id. Because the officer was only investigating a speeding violation when the defendant threw the marijuana out of the window, the court held that there was no evidence that an investigation in which the marijuana would serve as evidence was “pending or in progress.” Id. The court explained that only after the officer observed the defendant throw out the marijuana did the investigation change to involve drugs. As a result, the court determined there was no evidence of tampering. This analysis, however, has been rejected, albeit not explicitly overruled, in Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).

In Williams, an officer was conducting a traffic stop and decided to conduct a pat down search of the driver (i.e. defendant) for weapons. During the pat down a crack pipe fell onto the pavement, and the defendant immediately stomped on the pipe, crushing it with his foot. When deciding whether or not the above actions constituted tampering, the Court of Criminal Appeals rejected the lower court’s analysis, which stated that the traffic stop became a drug investigation once the officer and the defendant noticed the pipe on the pavement, and only then was there tampering. In rejecting this analysis, the Court held that requiring a change in the investigation, as the appellate court’s analysis and Pannell does, adds an additional mens rea element not required by section 37.09.

Thus, the Court held that when an officer is investigating a traffic stop and the suspect anticipates that the officer will begin a drug investigation if the officer finds evidence of drugs, and in accordance with that anticipation, the suspect destroys the drugs before the officer becomes aware of them, the suspect has tampered with evidence. As such, there is no requirement for the officer to “see the pipe” or “see the marijuana” before the suspect throws it out of the window in order for that action to constitute tampering. The determination will be made by the finder of fact using circumstantial evidence to draw inferences.

In Conclusion . . .

In conclusion, if the only evidence the State has of tampering is the fact that the defendant threw the item out of the window, without any other indicia of tampering, then the act alone does not rise to level of tampering under section 37.09. However, there are many reasonable circumstances, ever so slight, that could lend the fact finder to make an inference of intent to tamper. With that being said, because the offense of tampering is extremely fact-based, we recommend you reach out to our experienced attorneys to better understand your options.

Video Footage Evidence Fowler

Is a Video of a Video Admissible in a Criminal Trial?

By | Evidence

Video Footage Evidence FowlerTechnology has dramatically changed the landscape of criminal law procedure, and ultimately criminal convictions, in Texas. Updated DNA testing exonerates the wrongly-accused, while incriminating the guilty. Traffic cameras are commonplace on Main Street, clocking speeding motorists who are subject to fines and penalties—and bad feelings. Recently in Arkansas, recordings from Amazon’s Echo artificial intelligence device have been used by prosecutors as evidence in a murder trial. As digital evidence evolves rapidly, so must the evidentiary rules supporting admissibility. In this late-breaking case, the Texas Court of Criminal Appeals considers one man’s conviction for theft and burglary vis a vis the admissibility of “picture only” video footage.

State v. Fowler (Tex. Crim. App. 2018)

Fresh Tire Marks Lead to a Suspicious Dollar Store Receipt

Law enforcement was called to the scene of a burglary at a business in Royse City, Texas. Police discovered disarray; cut wires, mangled cables, and bolt cutters were seized as evidence, but no suspects were apprehended. One month later, police were called to investigate the same scene for another burglary. This time, ATV tracks led police to a nearby field where they found a receipt from the local Family Dollar store mere feet away from a stolen ATV. Even more curious were the items listed on the receipt, which included duct tape and utility knives. Police used the date, time stamp, and the address on the receipt to request video footage from inside the store. Employees at Family Dollar provided investigators with time and date-stamped footage that corresponded with the receipt found at the scene of the crime. Police recorded the incriminating footage on their body cameras, as recording from a VHS cassette proved time-consuming and clunky. Although the footage was non-audio “picture only,” it showed a suspect purchasing the items that were reflected on the receipt found at the crime scene. Further, the footage time and date stamps placed the individual inside of Family Dollar at a certain time, on a particular day.

Leveraging all of the information learned from the receipts, the fact that the ATV was stolen, and the video footage, law enforcement soon had a suspect—Jamel Fowler. Fowler was convicted of theft of property for stealing the ATV and was sentenced by a jury to two years imprisonment. Fowler appealed. On appeal, the court reversed the trial court’s conviction and sentencing, holding that “trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.” The State of Texas appealed to the Court of Criminal Appeals to determine whether prosecutors may prove authenticity of video footage without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. In other words, is the video of a video at Family Dollar admissible as evidence against Fowler? In order to answer that question, the CCA looked to Texas Rule of Evidence 901.

Texas Rule of Evidence 901 and the Authenticity Requirement

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Typically, to satisfy the requirement of authenticating evidence, the person offering the evidence must produce items or data sufficient to support a finding that the item or data is what the proponent claims it is.

“Authenticity may be established with evidence of distinctive characteristics and the like, which include [t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

TEX. R. EVID. 901(b)(4); see Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Conclusive proof of authenticity before allowing admission of disputed evidence is not required.

Applying Rule 901 to a “Picture Only” Video of a Video

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device? The Court answers that, yes, it is possible, given the facts.

Here, the Court acknowledged the argument of the defense in the appeal: “The court of appeals’s point is well-taken—the State could have done more [to prove up the evidence presented]. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way.”

The Court reasoned that video recordings without audio are treated as photographs and are properly authenticated when it can be proven that the images accurately represent the scene in question and are relevant to a disputed issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). The Court stated that (1) the officer’s in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time; (2) that the distinctive characteristic that there is a date and time stamp on the videotape; and (3) the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV; (4) the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt that was found near the stolen ATV, were enough, together, to authenticate the video. The video was sufficiently authenticated to be admissible into evidence. The evidence strongly pointed to Fowler and, accordingly, his conviction was upheld.

HIPAA Medical Record Search Warrant DWI

HIPAA Does Not Bar Admissibility of Private Medical Records in Criminal Case

By | DWI, Evidence

Does HIPAA Impact Fourth Amendment Standing When the State Obtains Medical Records in a Criminal Investigation?

HIPAA Medical Record Search Warrant DWIWe’ve all signed the “HIPAA” privacy statements at the doctor’s office before treatment. The HIPAA Privacy Rule mandates nationwide standards to protect our medical records and personal health information by establishing safeguards, such as disclosure rules, patient authorization, and uniform protocols for the electronic transmission of medical data. HIPAA also grants patients the right to their own health information, but what about others? Does HIPAA prohibit the release of health information in a criminal investigation? What if that information is obtained via a grand jury subpoena?

State v. Huse (Tex. Crim. App. 2016)

One Month After Car Accident, Man is Charged with DWI

On February 13, 2010, Hayden Huse ran off the road and crashed into a cotton field at two in the morning. When law enforcement responded to the scene, they smelled alcohol on Huse’s breath. Instead of giving him a sobriety test, they transported him to the local hospital for injuries he sustained. During the medical exam, the hospital ran routine blood work. A few hours later during an interview with law enforcement, Huse admitted that he consumed six or seven alcoholic drinks the previous evening. However, he refused law enforcement’s request for a breath or blood specimen for blood alcohol analysis.

One month later, based upon the police report taken of Huse’s car accident, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena to obtain Huse’s medical records from the hospital, even though no grand jury had been investigating Huse. The hospital complied with the subpoena, providing Huse’s medical records, along with a business records affidavit. The records revealed that approximately two hours after the car accident, Huse’s blood alcohol concentration was .219—an amount well above the legal limit.

Huse Files a Motion to Suppress the Evidence

Huse filed a motion to suppress the records at a suppression hearing. The trial court granted his motion to suppress on the grounds that the records were obtained in violation of the Fourth Amendment and that the Assistant District Attorney misused the grand jury subpoena process. The State appealed to the Seventh Court of Appeals, which reversed the trial court’s suppression order because “[Huse] lacked standing to raise a Fourth Amendment challenge…and [because] the State did not acquire [Huse’s] medical records through an unlawful grand jury subpoena.” State v. Huse, No. 07-12-00383-CR, 2014 WL 931265 (Tex. App.—Amarillo Mar. 6, 2014). Huse filed a petition to the Court of Criminal Appeals for a discretionary review of his case.

The Two Big Issues for The Court of Criminal Appeals

The Court of Criminal Appeals set out to determine whether the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) impacts Fourth Amendment standing when the State obtains medical records in a criminal matter, and, whether the State acquired Huse’s records via a grand jury subpoena that potentially violated HIPAA.

The Fourth Amendment and Reasonable Expectation of Privacy

Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “The provision protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). In order to raise a Fourth Amendment claim, a person must have legal standing, that may be “predicated on…a reasonable expectation of privacy principle.” United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).

State v. Hardy: The Precedent Case for the CCA

In Hardy, the CCA recognized that when the State itself extracts blood from a DWI suspect, and then subsequently conducts a blood alcohol analysis, then two “discrete searches” have occurred for a Fourth Amendment analysis. State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). The State neither extracted the sample nor conducted the blood alcohol analysis. As a result, the CCA concluded that the “Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on its own initiative.” Skinner v. Railway Labor Exec. Assn., U.S. 602, 624 (1989). Further, “society [does not] recognize a reasonable expectation of privacy in privately-generated and maintained medical records that would show the result of a blood alcohol analysis [in a DWI investigation].” Hardy, 963 S.W.2d at 525-27.

The CCA Decides Whether HIPAA Trumps the Holding In Hardy?

Here, the CCA says that the State neither extracted nor analyzed Huse’s blood sample—the third-party hospital did. Huse, therefore, has no Fourth Amendment standing because he had no reasonable expectation of privacy in his privately-generated and maintained medical records. Further, “whatever interests society may have in safeguarding the privacy of medical records, [such interests] are not strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.” Id. But what about HIPAA? Does HIPAA trump the holding in Hardy?

The CCA explains that while HIPAA “might support a broader claim that society recognizes that patients have a legitimate expectation of privacy in their own medical records, generally, HIPAA does not undercut the Court’s holding in Hardy.” Further, the CCA states, “HIPAA expressly permits the disclosure of otherwise protected health information when it is sought by grand jury subpoena.”

In sum, Huse had no expectation of privacy in third-party generated and maintained medical records for a Fourth Amendment claim, and, no provisions in HIPAA specifically deny the disclosure of health information in the event of a criminal investigation. The CCA affirms the judgment Seventh Court of Appeals that Huse’s medical records shall not be suppressed.

Evidence on Social Media Networks

Introducing Social Media Electronic Evidence at Trial

By | Evidence

Evidence on Social Media NetworksLaying the foundation for the admission of evidence can be tricky.  Often quite technical.  Even hypertechnical.  Depending on what you are trying to admit, you might need affidavits, chain of custody records, etc.  With the advancement of the internet, something trial lawyers of old did not even think about, there is more evidence out there.  Good evidence.  Sometimes really good evidence. Social media sites can provide a wealth of evidence for criminal trial lawyers on both sides of the aisle.

There are Facebook and MySpace friend lists and wall posts that can establish relationships and demonstrate motive or bias. Twitter feeds.  There is also a “check-in” feature on some sites that can show where someone was at a certain time.  What’s more, if you dig deep enough (usually with the help of a subpoena) a person’s private messages on Facebook or MySpace can be a treasure trove of information.  And let’s face it, many people on Facebook and MySpace have absolutely no filter.  Evidence galore.

One of the main problems with using social network media at trial is that ANYONE can create an account purporting to be anyone else.  Just check out the purported profiles for celebrities and you’ll see for yourself.  I seriously doubt Justin Timberlake has time to manage 20 different Facebook and MySpace profiles.

So, with this significant potential for fraud, how does a trial attorney go about authenticating and admitting this evidence at trial.  You might think that you need an affidavit from the social media company and the IP logs from the computer that created the account.  Indeed, you could get that sophisticated if you like.  But you don’t have too.   At least not in Texas.

The Texas Court of Criminal Appeals recently decided Tienda v. State, a case that dealt with this issue.  At trial, the State tried to introduce pieces of evidence obtained from the appellant’s purported MySpace accounts.  However, the state did not have IP logs showing which computer created the accounts or the hard drive of appellant’s computer or any other sophisticated computer evidence.  The State took the simple route.  It presented evidence obtained from MySpace showing which email address created the accounts. Then it presented evidence obtained from the MySpace profiles themselves (posts, music, photos, messages), which linked appellant (circumstantially) to the MySpace profiles.  They used a sponsoring witness that had been on the MySpace profiles and had seen the postings and pictures.  The trial court allowed the evidence over defense objection.

The CCA held that “a combination of facts…[was] sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant.” The CCA noted that under TRE 901(a), the proponent of the evidence need only make a threshold showing that would be sufficient to support a finding that the matter in question is what its proponent claims. “The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder – the jury, in a jury trial.” Electronic evidence, the CCA explained, may be authenticated in a number of different ways.  However, “simply showing than an email [or other electronic message] purports to come from a certain person’s email address…or that a text message emanates from a cell phone number assigned to the purported author…without more, has typically been regarded as [insufficient] to support a finding of authenticity.”

Ultimately, the CCA held in Tienda that there is no formula for admission of electronic evidence.  Each case should turn on its particular facts and the amount of circumstantial indicia of authenticity that is present.  The CCA cited a Maryland Court of Appeals opinion and seems to adopt the Maryland Court’s rationale regarding three instances that would satisfy the test for authenticity, but notes that the methods are not exclusive.

[T]he Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods. First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.” That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant.  Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.  Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.”

While that State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury.

If you are thinking about introducing social network evidence or other electronic evidence, this case is a good one to read. As always, the war is waged at the trial level, because on appeal, the standard is abuse of discretion, which means, of course, that the trial court’s ruling is given great deference.