By Alan Curry
Assistant Criminal District Attorney in Galveston County
If you are a prosecutor, certainly you have heard of the Michael Morton Act. The Act has caused a significant change in the practice of all prosecutors and has impacted the workload of prosecutor office staff.
But did you know the Michael Morton Act did not create a new statute? The Michael Morton Act actually amended part of Texas’s discovery statute, which had been on the books for decades, and it added several new subsections to it.[1]
The Michael Morton Act specifically amended Art. 39.14(a) of the Texas Code of Criminal Procedure, which now requires that the State produce, after a timely request from the defendant, various pieces of “evidence material to any matter involved in the action.”[2] Prior to the enactment of the Michael Morton Act, Art. 39.14(a) had long required the State to produce, “upon motion of the defendant showing good cause,” various pieces of “evidence material to any matter involved in the action.”
Thus, the Michael Morton Act removed the “good cause” requirement from the previous versions of Art. 39.14(a), and it based the State’s duty to disclose upon a request made by the defendant, instead of a motion made to the trial judge. The Michael Morton Act added several new types of evidence that the State is required to disclose, but—as you can see—there has been no change to the language as to the nature of the evidence that the State is required to produce. The State is, and always has been, required to produce “evidence material to any matter involved in the action.”
So if the Michael Morton Act is such a big deal—and it is—that must be based upon some other addition to Art. 39.14 caused by the Michael Morton Act, right? Not so fast.
In Watkins v. State,[3] the Texas Court of Criminal Appeals was squarely confronted with the meaning of this quoted language and the meaning of “material” in particular. The Court’s construction of the quoted phrase is one of the more significant developments from the Court in recent years.
Now that the Michael Morton Act has been in place for several years, odds are that the Court’s opinion will not change much of the actual practice of what prosecutors are disclosing to the defense. But make no mistake, Watkins is now the leading decision on the Michael Morton Act and Art. 39.14(a). Watkins also provides the foundation for any subsequent decision on the Michael Morton Act.
The facts of the case
In Watkins, the defendant was on trial for possession of a controlled substance with the intent to deliver. The State also alleged that the defendant had previously been convicted of two prior felony offenses, aggravated assault and retaliation.
Prior to trial, defense counsel timely requested disclosure of any “evidence material to any matter involved in the case” pursuant to Art. 39.14(a). Under Art. 37.07 of the Texas Code of Criminal Procedure, the prosecutor provided notice of the State’s intent to introduce evidence of prior convictions and extraneous offenses at punishment.
At the punishment stage, the prosecutor introduced into evidence 33 exhibits to prove up the defendant’s prior convictions and extraneous offenses. While the State had given notice under Art. 37.07, the State had not previously provided copies of these exhibits to the defense.
On appeal, the defendant claimed that the trial court erred by admitting these exhibits because they had not been produced by the State prior to trial in violation of Art. 39.14(a). In Watkins, the appellate courts reviewed the question of whether the trial court erred in admitting the exhibits into evidence. However, it should be noted that the courts were not confronted with whether exclusion of the exhibits from evidence was an appropriate remedy.
The intermediate court
The Waco Court of Appeals noted that the phrase, “evidence material to any matter involved in the action,” was present in Art. 39.14(a) before it was amended by the Michael Morton Act, and what is “material” had been subject to substantial judicial interpretation prior to the Act’s passage. Therefore, the court of appeals held that the definition of “material” should be the same after the passage of the Michael Morton Act as it had been before passage, regardless of what the Legislature may have intended when it passed the Michael Morton Act.[4]
Consequently, the court of appeals held that “materiality,” for the purposes of Art. 39.14(a), means that there is a reasonable probability that, had the evidence been disclosed, the outcome of the trial would have been different.[5] This definition mirrored the definition that the United Supreme Court had arrived at in determining what is “material” under Brady v. Maryland.[6] And that makes sense, right? I mean, both Brady and the Michael Morton Act deal with the prosecutor’s duty to disclose, and both use the word “material.” The definitions must be the same. The court of appeals certainly thought so.
Applying the Brady definition, the court of appeals held that, even if the undisclosed exhibits had been produced, there was no reasonable probability that the outcome of the trial would have been different or that the defendant’s sentence would have been reduced. Thus, under the standard for determining “materiality” by which it claimed to be bound, the court of appeals found that the exhibits were not “material.”[7]
Before the Court of Criminal Appeals
On petition for discretionary review, the Court of Criminal Appeals—with Judge David Newell writing the opinion—was squarely confronted with the issue of how to construe the statutory phrase “material to any matter involved in the case.” The issue for the Court was one of pure statutory construction. The Court relied upon oft-used rules and noted that determining legislative intent is not the Court’s goal. Instead, the goal is interpreting the text of the statute—what legislators actually wrote, not what they meant to write.[8] An appellate court usually reads words and phrases in context and construes them according to rules of grammar and common usage. A court usually will not consider things such as legislative history, unless the language of the statute is ambiguous or leads to absurd results.[9]
Over many years, some legislators had previously attempted to expand the scope of discovery in criminal cases by filing bills that would have amended Art. 39.14, but their efforts had been unsuccessful. The wrongful conviction of Michael Morton changed all of that. Michael Morton had spent 25 years in prison for a crime that he did not commit because the prosecutor trying his case had withheld material, exculpatory evidence.[10] After this tragedy, there was significant motivation to make real change. The Michael Morton Act made significant revisions to Art. 39.14(a), and it added subsections (c) through (n). The Michael Morton Act was an overhaul of criminal discovery in Texas. The statutory changes broadened criminal discovery for defendants, making disclosure the rule and non-disclosure the exception.
An examination of Art. 39.14(h)
On the road toward construing Art. 39.14(a), the Court took a look at Art. 39.14(h) and made the following observations about that subsection of the statute:
• the State has a free-standing duty to disclose all “exculpatory, impeaching, and mitigating” evidence to the defense that tends to negate guilt or reduce punishment;
• the duty is not limited to “material” evidence;
• the duty to disclose is much broader than the prosecutor’s duty under Brady;
• there is an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense; and
• the duty to disclose evidence that merely “tends” to negate guilt or mitigate punishment echoes the definition of evidentiary relevancy.[11]
The Court was not confronted with construing Art. 39.14(h), so this could be considered dicta—not necessarily a binding part of the Court’s opinion. But prosecutors would do well to consider this construction of Subsection (h).
While you might see in Subsection (h) some commonality with language from Brady caselaw, the Court held that the creation of Art. 39.14(h) is in fact inconsistent with Brady’s concept of “materiality.”[12] The Court held that, when Arts. 39.14(a) and 39.14(h) are read together, any relevant evidence that does not fall under Art. 39.14(h) must be disclosed upon request under Art. 39.14(a).[13] The Court detailed many of the other changes made to Art. 39.14 by the Michael Morton Act and concluded that these changes significantly expand the scope of criminal discovery in Texas to require disclosure of a great deal of evidence, even though the Legislature retained the word “material” in Art. 39.14(a).[14]
The meaning of “material”
The Court held that the meaning of “material” is plain, unambiguous, and synonymous with “relevant” when considered in context.[15] Students of statutory construction know that this means that there would be no need for the Court to look at legislative history to determine the meaning of the word “material.” Unambiguous text would be construed according to its common usage. The Court looked at the common definitions of “material” and noted their similarity to the word “relevant.”[16]
The Court noted that the Legislature did not use the phrase “material to guilt or punishment.” This contrasts with how Brady and cases that follow Brady define the concept of “materiality.” Materiality under Brady is specifically tied to the jury’s determination of guilt or punishment and judged in hindsight in relation to all the evidence admitted at trial.
Materiality under Art. 39.14(a) is not.[17] Under Art. 39.14(a), “material” evidence need only have a persuasive effect on any issue in the case—what the Court called subsidiary issues.[18] The evidence should not be judged in relation to the entire record after trial. Rather, prosecutors now assess whether a particular piece of requested evidence has some logical connection to the facts of the case, looking forward at the time of the request, most often prior to trial. The Court acknowledged the difficulty for the prosecutor in making this determination prior to trial.[19]
The presumption from the Court’s prior decisions
In determining what is meant by “material,” one would think that the Court would look to its past decisions that have construed the language. And there is in fact a presumption that the Legislature’s continued use of the phrase “material to any matter involved in the action” indicated an attempt to incorporate the Court’s precedent interpreting the previous version of the statute. However, the Court held that this presumption applies only when there has been a previous, authoritative judicial construction of the phrase.[20]
The Court held that its many prior judicial interpretations of Art. 39.14 had not clearly focused on the meaning of the phrase “material to any matter involved in the action.” Rather, the Court had focused on whether a trial court’s refusal to order disclosure amounted to reversible error. Consequently, there was no previous, authoritative interpretation of what constitutes evidence that is “material to any matter involved in the action.”[21]
Where did “material” come from?
The Legislature originally enacted Art. 39.14 as part of a revision of the Texas Code of Criminal Procedure in 1965—two years after Brady had been decided. So what about the Legislature’s use of the word “material” and Brady’s use of the word “material?” That has to count for something, right? The Court made it clear that is simply not the case.
Beginning in 1958, a committee created by the State Bar began looking at revisions to criminal procedure in Texas. A resulting proposal was submitted in 1962—before Brady had been decided—and the revisions were passed in 1963, but the bill was vetoed by the Governor for non-substantive reasons. The bill passed again in 1965 with no substantive changes to the discovery provision.[22] Therefore, Art. 39.14 could not have come from Brady.
Art. 39.14 was actually patterned after its civil counterpart, Rule 167 of the Texas Rules of Civil Procedure.[23] At the time, Rule 167 provided, “Upon motion of any party showing good cause … the court … may order any party to produce [evidence] which constitutes or contains evidence material to any matter involved in the action.”[24] The 1963 bill that proposed reformation of the Code of Criminal Procedure borrowed the phrase “material to any matter involved in the action” directly from Rule 167 of the Rules of Civil Procedure.[25]
Legislative history
As noted, the Court found the meaning of “material” to be unambiguous. Therefore, examination of legislative history was not necessary. Nevertheless, the Court held that the legislative history of the Michael Morton Act did not require a different interpretation.[26] The goal behind the passage of the Michael Morton Act was first to preserve a criminal defendant’s rights under Brady. There was no specific discussion of why the Legislature chose to keep the phrase “material to any matter involved in the action.”[27]
The Court did note that the first version of the bill specifically used the word “relevant,” rather than “material,” to describe the evidence subject to disclosure. The sponsors reached a compromise that deleted some text from the previous version of Art. 39.14(a) but kept the reference to evidence “material to any matter involved in the action.”[28] Yet, throughout the life of the bill, the bill analyses continued to refer to the disclosure of “relevant” evidence.[29] Even though the Legislature did not use the word “relevant,” the Court found that its intent was for “material” to mean essentially the same thing as “relevant.” Therefore, the 7–2 Court held that the word “material,” as it appears in Art. 39.14(a), means “having a logical connection to a consequential fact” and is synonymous with “relevant.”[30]
The Court then had no difficulty in determining that the 33 exhibits in the Watkins case were “material to any matter involved in the action.” The exhibits constituted documents used to prove two prior convictions for enhancement and other extraneous offenses. These exhibits were at least “subsidiary facts” that could assist a fact-finder in assessing the defendant’s punishment. They had a logical connection to a consequential fact and should have been disclosed upon a proper request.[31]
Conclusion
What does the decision in Watkins mean for prosecutors attempting to decide if something should be disclosed to the defense when requested? If evidence is exculpatory for the defendant or impeaching of the State or its witnesses, it should be disclosed under Brady and Art. 39.14(h)—frankly, whether it was requested or not. If the evidence is not subject to a privilege, such as the work-product privilege or the confidential-informant privilege, it should be disclosed if it is relevant to any issue in the case—not just the controlling issues of guilt or punishment.
Endnotes
[1] See Acts 2013, 83rd Leg., R.S., Ch. 49 (SB 1611), §2, eff. Jan. 1, 2014 (The Michael Morton Act).
[2] Tex. Code Crim. Proc. Art. 39.14(a).
[3] Watkins v. State, ___ S.W.3d ___, No. PD-1015-18, 2021 WL 800617 (Tex. Crim. App., Mar. 3, 2021).
[4] Watkins v. State, 554 S.W.3d 819, 821 (Tex. App.—Waco 2018).
[5] Watkins, 554 S.W.3d at 822.
[6] Brady v. Maryland, 373 U.S. 83 (1963).
[7] Watkins, 554 S.W.3d at 822.
[8] Watkins, 2021 WL 800617, at *4.
[9] Watkins, 2021 WL 800617, at *5.
[10] Watkins, 2021 WL 800617, at *6.
[11] Watkins, 2021 WL 800617, * at 9. See Tex. Code Crim. Proc. Art. 39.14(h); Tex. R. Evid. 401.
[12] Watkins, 2021 WL 800617, at *18.
[13] Watkins, 2021 WL 800617, at *9.
[14] Watkins, 2021 WL 800617, at *10.
[15] Watkins, 2021 WL 800617, at *10.
[16] Watkins, 2021 WL 800617, at *12.
[17] Watkins, 2021 WL 800617, at *10.
[18] Watkins, 2021 WL 800617, at *11.
[19] Watkins, 2021 WL 800617, at *12. A prudent prosecutor “looking forward” in this manner should lean toward disclosure of a piece of evidence. See Kyles v. Whitley, 514 U.S. 419, 439 (1995) (“a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. [See Agurs v. United States, 427 U.S. 97, 108 (1976)] (‘[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure’). This is as it should be”).
[20] Watkins, 2021 WL 800617, at *12.
[21] Watkins, 2021 WL 800617, at *13.
[22] Watkins, 2021 WL 800617, at *13.
[23] Watkins, 2021 WL 800617, at *13.
[24] Watkins, 2021 WL 800617, at *13.
[25] Watkins, 2021 WL 800617, at *13-14.
[26] Watkins, 2021 WL 800617, at *14.
[27] Watkins, 2021 WL 800617, at *19.
[28] In her dissenting opinion, Presiding Judge Keller used this circumstance as suggesting that “material” must mean something different from “relevant” because the Legislature consciously chose not to use the word “relevant.”
[29] Watkins, 2021 WL 800617, at *19.
[30] Watkins, 2021 WL 800617, at *20.
[31] Watkins, 2021 WL 800617, at *20.