By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
Most people think the most important thing they will learn in a self-defense class is how to punch, kick, throw, or submit a potential assailant. While those are important, the more valuable lesson is situational awareness and avoiding the need for those techniques in the first place.
The best way to protect yourself is to be aware of your surroundings and never put yourself in the position of having to use what you’ve learned—i.e., don’t be there when trouble starts. This is a very old concept. As the Chinese general and strategist Sun Tzu said centuries ago (and Bruce Lee repeated more recently), the best way to win against an opponent is to avoid fighting at all—through diligence, preparation, and awareness.
That’s still great advice, because the need for preparation and awareness is more important than ever for prosecutors and law enforcement after the Court of Criminal Appeals’s recent decision in State v. Heath.[1] The short version of Heath is that trial courts do not abuse their discretion by excluding evidence in the possession of law enforcement that was not timely disclosed in response to a request under the Michael Morton Act, even absent a showing of bad faith on the part of the prosecution, or even any knowledge that the evidence existed.
Background
Dwayne Robert Heath was indicted for injury to a child and was appointed counsel, who made an email request for discovery to the district attorney’s office. Discovery was provided in the form of law enforcement records, CPS records, and photographs, and the case was placed on the trial docket. The State announced ready at three different trial settings, but another case was set ahead and proceeded each time. Roughly a week before the fourth setting (and 14 months after the initial discovery request), the trial prosecutor met with the child victim’s mother and learned that she had placed a 911 call on the date of the offense. The trial prosecutor requested a copy of the recording and provided it to defense counsel as soon as she received it. Defense counsel filed a motion to suppress the 911 call, arguing a violation of the Michael Morton Act.
The motion to suppress was heard the morning of trial. Heath’s counsel argued that the Michael Morton Act in Code of Criminal Procedure Article 39.14(a) requires discovery in the possession, custody, or control of the State be provided as soon as practicable upon request, and that “the State” includes law enforcement dispatch, which had been in possession of the 911 call for over a year. The trial prosecutor responded that she had been unaware of the 911 call’s existence until speaking with the child’s mother, and that she provided it to defense counsel immediately on receiving it. Because there was no showing of bad faith, she argued, the proper remedy should be a continuance, not the exclusion of the evidence. Heath’s counsel responded that a violation of Article 39.14(a) did not require a showing of bad faith, only that the State did not provide discovery “as soon as practicable,” and that the discovery here had been in the possession of law enforcement since the request was made 14 months prior. The trial prosecutor responded that “as soon as practicable” means as soon as the prosecution becomes aware of evidence, which was six days earlier. The trial court granted Heath’s motion to exclude the 911 call.
The prosecution immediately filed a State’s appeal,[2] putting the trial on hold, and argued that the trial court erred by excluding the evidence rather than granting a continuance because there had been no showing of a willful violation of Article 39.14(a). The court of appeals reversed the trial court on a different ground than the State raised, holding that the simple email request of “Can I get discovery on this client?” did not designate any items sought to be produced and did not trigger a duty under Article 39.14.[3] The Court of Criminal Appeals reversed and remanded back to the court of appeals to rule on the issue presented by the State, rather than reversing on an issue that was not presented to the trial court or raised on appeal.[4] Ordered to consider that issue, the court of appeals affirmed the holding of the trial court and found that the exclusion of the 911 call was not an abuse of discretion.[5] The State petitioned to the Court of Criminal Appeals, which granted review.
As the judges saw it
On June 12, 2024, the Court issued a 54-page opinion, authored by Judge David Newell, affirming the court of appeals and the trial court. The question as the Court saw it was multifaceted.
One, does the Article 39.14(a) requirement that the “the State” produce discovery “as soon as practicable after receiving a timely request” include items in police and law enforcement possession that the prosecution doesn’t know about? Two, does “as soon as practicable” require the prosecutor’s knowledge of the undisclosed evidence? And three, does the trial court have the authority to exclude evidence that was not timely disclosed under Article 39.14(a) absent a showing of bad faith or prejudice on the part of the prosecution? The Court answered all questions in the affirmative: “The State” in Article 39.14 refers to not only the individual prosecutor’s office but also to law enforcement. “As soon as practicable” does not require knowledge on the part of the prosecution, and the trial court did not abuse its discretion in excluding the evidence under the facts of this case.
The majority disagreed with the prosecution that “the State” here referred only to the prosecution. “Article 39.14’s use of the word ‘state’ means exactly what one would think it means—the ‘State of Texas.’ … It is not limited to the prosecutor trying the case.” Judge Newell observed that where the statute intended to limit applicability to a particular agent of the State it did so specifically, as it did when exempting “the work product of counsel for the State,” and reasoned that phrasing would be meaningless if “the State” only ever referred to the prosecution. General references to “the State” were accordingly to be read in the broadest sense, which means that the duty to disclose is placed on both the prosecution and law enforcement. Judge Newell also reasoned that reading “the State” as meaning only the prosecution would conflict with the statutory expansion of Brady obligations in Article 39.14(h):[6] If “the State” were read there to mean only the prosecution, the State’s duty to disclose would be diminished rather than broadened, which frustrates the purpose of the Michael Morton Act. Finally, Judge Newell noted that reading “the State” to encompass both prosecution and law enforcement’s duty to disclose was consistent with the 2021 passage of Article 2.1397, which mandates that the law enforcement agency submit a written statement that everything required to be disclosed to the defendant under Article 39.14 has been provided to the prosecutor.
The Court further rejected the State’s contention that “as soon as practicable” required the prosecutor’s knowledge of the undisclosed evidence. Judge Newell observed that Brady violations, discovery order violations, and ethical violations under the Rules of Professional Misconduct all include a scienter requirement; e.g., a prosecutor does not violate constitutional obligations under Brady when the State was unaware that exculpatory information not in its possession even existed. Judge Newell noted that this standard did not apply here and that the Court was “merely asked to consider whether the prosecutor failed to comply with the terms of a statute.” The question is only whether the requested discovery was provided “as soon as practicable,” meaning did the prosecution fulfill its duty to search for and disclose the discoverable evidence as soon as the State was reasonably capable of doing so, upon receiving a timely request from the defense? The Court held that here the State did not and that the statute was violated, as the 911 call was not disclosed until 14 months after the defendant’s timely request, despite being in law enforcement possession since the date of the offense.
The discussion then turned to whether the trial court had the authority to exclude the evidence for a violation of Article 39.14(a). Here, the court agreed with the court of appeals’s conclusion but not its analysis. The court of appeals found that the failure to ascertain the existence of the evidence rose to the level of something akin to bad faith on the part of the prosecution, holding that “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.’”[7] The Court of Criminal Appeals’s opinion disagreed that the failure to inquire about the existence of discoverable evidence rises to the level of “bad faith” on the prosecutor’s part but held that the trial court was not required to find the State acted in bad faith or that the defendant was prejudiced to exclude the evidence for a discovery violation.
Although 39.14 has never had a provision regarding a potential remedy for a discovery violation, Judge Newell observed that the Court has previously recognized that the trial court has the inherent authority to exclude exculpatory evidence that was withheld in violation of the court’s discovery order, even when the withholding was inadvertent. This was the case even before the passage of the Michael Morton Act. In Hollowell v. State,[8] the Court held that a prosecutor “willfully” (but ultimately harmlessly) violated the trial court’s discovery order by not disclosing palmprint evidence prior to trial, saying that “just as defense counsel has an obligation to investigate the case before he goes to trial, the prosecutor has a duty to know what evidence is at his disposal.”[9] Later cases saw the “willfulness” standard morph over time into essentially a bad faith requirement,[10] but in Judge Newell’s concluded that was a misinterpretation of the Hollowell standard of willfulness and a response to the arguments raised rather than an inherent limitation of the trial court’s authority to exclude evidence.
The State further argued that the appropriate remedy here should be a continuance rather than the exclusion of the evidence. While the Court agreed that would be a much more restrained solution, it qualified that the question before it was only whether the trial court abused its discretion in choosing the remedy that it did. Although reasonable minds could disagree and it “might have been better practice for the trial court to grant even a short recess,” when considering the 14 months between request and disclosure and the State’s three prior announcements of ready for trial without the evidence, the exclusion was not an abuse of the trial court’s discretion. The prosecution’s inadvertence and lack of bad faith was immaterial.
The dissent
Judge Keel wrote a dissenting opinion joined by Judge Yeary and Presiding Judge Keller. The dissent took exception to the central premise of the majority opinion that “the State” refers to both prosecution and law enforcement: “When the Legislature means ‘law enforcement,’ it spells it out. [Because] it did not do that in Article 39.14, we should not, either. … The majority’s contrary reading is at odds with the rest of the Code of Criminal Procedure where ‘the State’ most often means both the State of Texas as a party to a criminal lawsuit and the prosecution as its representative but never means—as far as I can see—law enforcement.” Judge Keel cited 14 examples of the Legislature using the phrase “law enforcement” to mean exactly that,[11] and argued that the majority’s reading of “the State” turns Article 2.1397 into a redundancy. Because the purpose of Article 2.1397 was to ensure that law enforcement disclosed to the prosecution the discoverable material that law enforcement possessed, which the prosecutor would then disclose to the defense under Article 39.14, reading “the State” to include law enforcement in Article 39.14 renders Article 2.1397 meaningless. To this end, she pointed out that the Sponsor’s Statement of Intent in the bill analysis for Article 2.1397 says, “Under Article 39.14 prosecutors are required to turn [discoverable material] over to the defense,” but goes on to say, “Law enforcement agencies, however, are not compelled to disclose the information.”[12]
She argued that the majority’s references to “the State” and “counsel for the State” draw a distinction without a difference, as a statute that requires a magistrate to provide a copy of a report to “the attorney representing the State” would mean the same thing if it required the magistrate to give a copy to “the State.” Because Judge Keel read “the State” to mean the prosecution, she would find that the State disclosed the 911 recording as soon as practicable because the prosecutor did so as soon as she learned of its existence.
The takeaway
At the outset I want to point out here what Judge Newell was very careful to say: This is not the equivalent of a Brady violation, this is not the intentional violation of a court order, and this is not a violation of the Rules of Professional Conduct. There is no inherent ethical violation here; this ruling merely addresses whether the prosecution has complied with a statute mandating timely disclosure and what the appropriate remedies may be if not. Your case may suffer, but your law license should survive intact.
So how do we avoid problems with Heath? First, impress heavily upon our allies in law enforcement that the timely disclosure of evidence in a case they have filed with us is critical. Under Heath, a trial court has the authority to exclude evidence that the prosecution was unaware of, even without a showing of bad faith on anybody’s part. Be sure officers know that evidence we do not disclose in a timely manner may not come in at trial, potentially invalidating all the hard work done in the investigation of a case. Our own office is implementing some changes to our discovery policy to head off Heath problems as it pertains to 911 calls: When paper discovery is uploaded, the discovery clerk will also send a request to police and sheriff dispatch for any 911 calls to be provided, which will then be digitally uploaded for defense upon receipt.
Other offices will likely be coming up with problem-solving policies of their own, and if your office finds something that works well, by all means drop me a line so we can discuss it here in the journal or at TDCAA’s Annual Conference in September. It’s a concern that we don’t yet know the outer limits of the ruling and who else may be “the State,” other than the prosecution and the law enforcement agency that filed the case, for Michael Morton purposes, so try not to make your case the one that tests those limits. It may well be that you discover relevant CPS records in the possession of the Department of Family and Protective Services; unlike the filing agency, authorities there would not know that prosecutors needed this information for an open case. Avoid Heath problems here by doing some documentation and legwork on the front end if you think this may be an issue in a case.
Another point to remember if you run into a Heath problem is that exclusion of the evidence is a remedy, not the remedy. Judge Newell’s opinion took care to make clear that the Court was not saying that this would be the appropriate remedy in every case. Rather, the Court was expressing an opinion as to whether it was the appropriate remedy in this case, and even acknowledged that “it might have been better practice for the trial court to grant even a short recess.” As Judge Newell wrote, “We acknowledge that a continuance would be a much more restrained solution. But that’s not the question before us. … It may very well be that reasonable jurists could disagree about the appropriate remedy in a particular case, but unless the trial court’s decision is outside of the zone of reasonable disagreement, this Court will not overturn its ruling.” In the unhappy event you are presented with an argument to exclude based on Heath, be prepared to explain why exclusion is not the appropriate remedy. In Heath, the request was made 14 months prior, the 911 call was turned over only six days before trial, and the State had previously announced ready to proceed to trial three times without the 911 call, which indicated that the call was not critical to the case. If the facts of your disclosure are different from those in Heath, explain how and why. Also be aware that if you are requesting a continuance, you may need to fulfill the formal written requirements to preserve error.
Yet another concern is that we don’t yet have much guidance as to what would constitute an abuse of discretion in the trial court. The length of time between the request and disclosure is clearly paramount, but the importance of the evidence to the State’s case is something that I would also argue should be a consideration in the analysis. In Heath, the evidence was presumably not critical because the prosecution was ready to go forward without it on numerous occasions, but evidence of greater importance may weigh more heavily in finding an abuse of discretion when the trial court excludes it. The Court’s opinion relied a good deal on the civil rules in explicating the burden of disclosure and the trial court’s inherent power to exclude evidence as a remedy, and the civil rules also say that a discretionary sanction[13] must be “just,” meaning directed at the offender (whether counsel, party, or both), and not excessive, meaning no more severe than necessary to satisfy its legitimate purposes.[14] The civil rules recognize that it may not always be just to punish a party for its counsel’s transgressions,[15] and while a victim is not technically a party to a criminal action, there is at least some argument that a crime victim has an interest in seeing justice done—which a judge should consider. Also, civil courts consider so-called “death penalty sanctions” only for the most egregious of discovery violations, and the exclusion of evidence that is “case-determinative” (i.e., precludes presentation of the merits and disposes of the entire case) is a form of death-penalty sanction. There should arguably be a difference in treatment between an exclusion of evidence that inconveniences the presentation of the State’s case and one that eviscerates it, so if an exclusion is essentially the equivalent of dismissing the prosecution, that should be brought to the trial court’s attention and preserved on the record for review.
Let’s hope that future cases will offer further clarification on who is and isn’t “the State” for Michael Morton Act purposes and when exclusion of the evidence may rise to an abuse of discretion; mandate on Heath has not yet issued at the time of this writing and the State Prosecuting Attorney’s Office will likely request a rehearing to gain some further guidance, but it is likely that we will have to wait. Until then, avoid Heath problems altogether by making sure disclosures are timely. We don’t have to worry about trouble if we avoid it before it starts. As Sun Tzu said, win the fight by avoiding fighting.
Endnotes
[1] No. PD-0156-22, __S.W.3d__, 2024 Tex. Crim. App. LEXIS 446, 2024 WL 2952387 (Tex. Crim. App. June 12, 2024).
[2] The State may appeal a pretrial ruling in only a few circumstances; the most common is the granting of “a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case.” Tex. Code Crim. Proc. Art. 44.01(a)(5).
[3] State v. Heath, 582 S.W.3d 495 (Tex. App.—Waco 2018).
[4] The reasoning here is tricky to explain. Reviewing courts are generally free to consider “unassigned error,” claims that were preserved in the trial court but were not raised on appeal. Preservation is the catch, though: “Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court.” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). In other words, the Court of Criminal Appeals held that the court of appeals ruled in favor of the State on an issue which the State had procedurally defaulted.
[5] State v. Heath, 642 S.W.3d 591 (Tex. App.—Waco 2022), aff’d, 2024 Tex. Crim. App. LEXIS 446 (Tex. Crim. App. 2024).
[6] “Notwithstanding any other provision of this article, the State shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, control of the State that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”
[7] Heath, 642 S.W.3d at 597.
[8] 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).
[9] Id.
[10] See Oprean v. State, 201 S.W.3d 724, 727 (Tex. Crim. App. 2006) (State’s failure to turn over DWI videotape demonstrated a calculated effort to frustrate the defense, given the prosecutor’s statements and actions); State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004) (trial court’s exclusion of DNA evidence was erroneous when no evidence showed the trial prosecutor intended to violate the discovery order or harm the defense).
[11] E.g., Tex. Code Crim. Proc. Art. 2.12(6) (specifying certain “law enforcement agents” as peace officers); Art. 18.191 (setting out duty of “law enforcement” officer or agency when seizing a firearm); Art. 38.20 (specifying identification procedures to be used by law enforcement agencies); Art. 45.0217 (requiring certain records “held by law enforcement” to be kept confidential).
[12] S. Comm. on Crim. Justice, Bill Analysis, S.B. 111, 87th Leg. R.S. (as filed May 31, 2021).
[13] Tex. R. Civ. P. 215.
[14] TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
[15] Id.; see also Ogunboyejo v. Prudential Property and Cas. Co., 844 S.W.2d 860, 863 (Tex. App.—Texarkana 1992, writ denied) (a party should not be punished for the transgressions of its counsel); Glass v. Glass, 826 S.W.2d 683, 687-88 (Tex. App.—Texarkana 1992, writ denied); see also Bradt v. West, 892 S.W.2d 56, 76 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding that a party to a civil suit cannot be liable for the intentional wrongful conduct of his attorney unless the client is implicated in some way other than merely having entrusted his legal representation to the attorney).