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Michael Morton

Mar 18
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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.

Apr 06
Love1
Michael Morton Act In Re Powell

Court Rules on Discovery to Clients under the Michael Morton Act (39.14)

By Criminal Defense

May a Court Order that an Attorney Can Provide Copies of Discovery to a Client Pursuant to the Michael Morton Act?

Michael Morton Act In Re PowellThe Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus in regard to a discovery dispute arising out of Article 39.14 of the Texas Code of Criminal Procedure —otherwise known as the Michael Morton Act. The central issue facing the Court was whether the relator (a party who has standing and on whose behalf a writ of mandamus is petitioned for by the state as plaintiff) satisfied the criteria to justify mandamus relief.

See the full opinion in In re Powell v. Hocker (NO. WR-85,177-01)

The Facts—Trial Judge Granted Defendant’s Motion to Release Discovery.

Ellen Wilson, the real party of interest, was charged with misdemeanor DWI in the County Court at Law in Lubbock, Texas. Wilson’s attorney obtained discovery pursuant to Article 39.14 and filed a motion to “release” Wilson from the prohibition contained in subsection (f) of the statute. Subsection (f) of Article 39.14 permits a defense attorney to “allow a defendant . . . to view the [discovery] information provided under this article,” but the defense attorney “may not allow” the defendant “to have copies of the information provided[.]”

In the brief filed in support of the motion, Wilson’s attorney prayed that the County Court at Law would “permit defense counsel to give her a properly redacted copy of the requested items of the State’s evidence.” The brief did not maintain that Wilson had been unable to “view” the discovery in the attorney’s possession, as the statute expressly permits. Rather, it asserted that it was important for Wilson to be able to obtain her own copies in order to effectively help counsel prepare her defense. The trial judge granted Wilson’s motion, but stayed the effect of his ruling pending the State’s application for writ of mandamus.

The Court of Criminal Appeals Conditionally Granted Mandamus Relief—Directing the County Court at law to Rescind its Order Permitting Defense Counsel to Provide Defendant a Copy of the Discovery Materials that were Provided by the State Pursuant to Article 39.14.

In order for a court to determine whether mandamus relief is appropriate, the relator must establish two criteria. State ex rel. Young v. Court of Appeals for the Sixth Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relator must demonstrate that he has no adequate remedy at law to rectify the alleged harm. Id. Additionally, the relator must have a clear right to the relief sought. Id. In other words, the relator must show that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Id.

The Court determined that the State had no right to appeal Respondent’s order, which permitted trial counsel to provide the real party of interest with a copy of the discovery materials. More notably, Respondent did not seriously contest this issue. As such, the Court held the first criteria to be satisfied for mandamus relief.

Next, the Court determined the act was ministerial in nature. An act may be deemed “ministerial” when “the facts are undisputed and, given those undisputed facts, the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment[,]”—even if a judicial decision is involved. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (citations omitted). Furthermore, the Court determined this rule extends to cases of first impression.

The Court found Article 39.14 to be clear, unambiguous, and indisputable. Subsection (f) of the statute expressly and unequivocally prohibits the attorney, or her agent, to “allow” the defendant “to have copies of the information provided[.]” Respondent argued that Subsection (f) only speaks to whether the defendant’s attorney may supply him with copies of the discovery materials; it does not prohibit a trial court itself from providing copies. The Court rejected this argument because not doing so would circumvent the unqualified prohibition in subsection (f).

Next, Respondent argued that subsection (e) contemplates scenarios when a trial court may order disclosure of such materials. Subsection (e) expressly prohibits “the defendant” from personally disclosing discovery material to a third party. Respondent argued that this prohibition seems to assume that the defendant would have copies of those materials in the first place to disclose. The Court rejected this argument explaining that a defendant could “disclose” the substance of discovery materials to a third party by memory, having been allowed to “view” them pursuant to Subsection (f).

Rejecting all of Respondent’s arguments, the Court determined that the trial court lacked authority to enter an order that effectively abrogated Article 39.14. As such, the Court conditionally granted mandamus relief directing the County Court at Law to rescind its order.

This opinion solidifies what we already knew about Article 39.14 and have been telling clients all along – defense attorneys MAY NOT provide discovery materials to our clients.  And now, not even if the trial court orders it.