Court of Criminal Appeals

State v. Heath

No. PD-0156-22                               9/25/24

Dissent to Denial of State’s Motion for Rehearing (Keller, P.J., joined by Yeary and Keel, JJ):

“As the amount of evidence in criminal cases expands to terabyte level, with such things as cell-phone extraction and location information, body-cam video, doorbell video, CCTV, and computer hard drive extraction, it is inevitable that items with evidentiary value will sometimes be overlooked. Under this Court’s opinion, an inadvertent mistake by an overworked prosecutor could leave crime victims without justice when the remedy of a continuance would protect both the defendant and the victim. The Court should reconsider its holding in this case.” Read dissent.

Commentary:

Despite a concerted, united push for rehearing by district and county attorneys across the State, the Court of Criminal Appeals holds its ground and refuses to reconsider its decision in Heath. As a result, prosecutors cannot rely on law enforcement disclosures made pursuant to Article 2.1397 to ensure their discovery compliance is sound and may consider implementing new practices when appropriate, such as:

• After the defense makes a discovery request, contacting all pertinent law enforcement agencies and state contractors (e.g., labs) as soon as you can to ascertain whether they are in possession of any evidence related to your case.
• Documenting those efforts so you can prove to the trial court (and any reviewing appellate court later on) that you diligently searched for discoverable evidence.
• Reviewing offense reports, witness statements, and other case materials for oblique references to discoverable evidence, which you should then request. 
• If discoverable evidence may exist that has not yet been disclosed, you should immediately (1) request the evidence, (2) notify defense counsel, (3) disclose a copy upon receipt, and (4) document your efforts.
• After an untimely disclosure of evidence, move for (or don’t object to) a continuance if necessary to give defense counsel adequate time to review the evidence and conduct any necessary follow-up investigation.
• Arguing that suppression/exclusion is not warranted because the defendant was not prejudiced by the delay (assuming that the facts of your case support making a no-prejudice argument in good faith).
• Citing Burton v. State, 694 S.W.3d 892 (Tex. App.—Houston [14th Dist.] 2024, pet. ref’d), which provides a helpful example of a scenario where the trial court acted within its discretion to NOT suppress/exclude security camera videos because, although they were untimely disclosed, the defendant was not prejudiced by the delay because the disclosure was still made nine months before the defendant’s trial.

Ex parte Christian

No. WR-39,987-04                          9/25/24

Issue:

In a case involving Houston police officer Gerald Goines, who had been previously found to have given false information and testimony in drug cases, was Goines’s conduct the type of misconduct that gives right to an inference of falsity under Ex parte Mathews, 638 S.W.3d 685 (Tex. Crim. App. 2022)?

Holding:

No. In order to establish a false-evidence claim, a defendant needs to establish not only that evidence presented against him was false but also that the false evidence was material to the conviction or punishment. Distinguishing this case from Mathews, the Court noted that Goines was not the only officer involved in the investigation, nor was he even likely the first officer to make note of the drugs. Read opinion.

Concurrence (Keel, J.):

“The majority opinion confuses ‘same type of misconduct’ with circumstances surrounding it. Surrounding circumstances like other witnesses or corroboration might rebut an inference of falsity or undermine materiality, but it would not inform an assessment of sameness. Indeed, the parties agree that Goines’s alleged misconduct in this case was the same type of misconduct that he committed before, and that is consistent with our caselaw.” Read concurrence.

Commentary:

As the Court reminds us, the first part of a false-evidence claim requires the defendant to establish that the evidence in question is actually false. Under Coty and Matthews, proof of a state actor’s pattern of misconduct in other cases might establish an inference of falsity as to the contested evidence in the defendant’s case if the defendant can satisfy a 5-part test: (1) the actor in question is a state actor, (2) the state actor has committed multiple instances of intentional misconduct in another case or cases, (3) the state actor is the same person that worked on the defendant’s case, (4) the misconduct is the type of misconduct that would have affected the evidence in the defendant’s case, and (5) the state actor handled and processed, or was involved with, the evidence in the defendant’s case within roughly the same period of time as the actor’s other misconduct.

This case provides a helpful caveat to element four of this test in that it explains that, if the state actor (here, a police officer) is not the sole witness or party connected to the challenged evidence, then the state actor’s conduct will not be deemed the “same type of misconduct” that the state actor engaged in during his or her other misdeeds. Even if this caveat does not fit neatly within element four, as the concurring opinion laments, it will nonetheless be useful for prosecutors faced with a similar scenario.

Texas Attorney General Opinion Request

RQ-0563-KP                       9/16/24

Issue:

Do Texas courts have the authority to render judgments in uncontested proceedings that order a non-party change a person’s “sex” designation on government documents? Read request for opinion.

Requested by:

Steven McCraw, Director of the Texas Department of Public Safety

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