By Jon English
Assistant Criminal District Attorney in Hays County
Billy Moore was convicted of DWI and sentenced to 100 days in the Travis County Jail.[1] But he wasn’t going quietly. He appealed his conviction in a motion for new trial, and he had a novel theory as to why his conviction should be overturned.
Unbeknownst to the prosecutors in the case, the officer who made the arrest was under investigation for possession and distribution of child porn by the Attorney General’s Office.[2] Not only did the Travis County Attorney’s Office not know this, but neither did the Austin Police Department. Nevertheless, Moore argued that not only was this information impeachment evidence through which he could undermine the credibility of an essential witness against him, but also that the knowledge of an investigation being performed in one law enforcement agency was essentially imputed to another—in this case, the prosecutor’s office.
The Third Court of Appeals in Austin didn’t buy it. Judges there applied a longstanding Brady analysis that focused on the concept of the “prosecution team.”[3] This analysis has existed since at least 1979[4] and relies on the idea that knowledge of facts in a case are imputable only to those actively working together on the prosecution of that specific case. In other words, the Attorney General’s investigation and the Travis County Attorney’s Office weren’t teammates on Moore’s DWI case or on the child porn case against the investigating officer, so it wasn’t a Brady violation to not disclose the child porn investigation to the defense.
But didn’t the prosecution have a duty to seek out Brady information and disclose it to the defense as held in Kyles v. Whitley?[5] No, not on these facts, because the Attorney General wasn’t acting on behalf of the “prosecution team.” That is, the Attorney General was not “the State” for discovery purposes.
Would it have come out differently if Travis County law enforcement had known about the Attorney General’s investigation? Maybe. It’s hard to answer that question 17 years later because our concept of prosecutorial duties vis-à-vis discovery have evolved so much since then.
In fact, at the beginning of this very summer, we received a signal from the Court of Criminal Appeals that we may no longer be able to simply look to the line of “prosecution team” cases for guidance in answering this one ubiquitous and confounding question: Just who is the State when it comes to discovery responsibilities?
Who does Heath say the State is?
It’s been about 11 years now since the legislature passed the Michael Morton Act (MMA), which is less than half of the time that Morton himself served in prison for a crime he did not commit. As you know by now, the Michael Morton Act was a complete overhaul of Article 39.14 of the Code of Criminal Procedure, otherwise known as the discovery statute. It has taken this long for various appeals concerning the revamped discovery law to work their way up to the Court of Criminal Appeals, but they’re starting to arrive now, and as a result prosecutors have two landmark decisions interpreting the act.
The first, Watkins v. State, was written by Judge David Newell, and it was issued in March 2021.[6] The discussion in Watkins revolved around trying to pin down what “materiality” meant in a post-MMA world. The Court had issued many opinions over the years defining materiality in terms of previous U.S. Supreme Court definitions under Brady and its progeny, harmonizing those cases with then-existing versions of Texas discovery statutes.
But the CCA made a significant observation in Watkins, clearly recognizing that the prosecutor’s duty regarding discovery was broadened by the Michael Morton Act beyond the requirements of the previous statutes, as well as broadened beyond the baseline constitutional due- process considerations formerly imposed.[7]
Then, in June of this year, with Judge Newell as the author again, the court handed down State v. Heath.[8] In Heath, the court took on the question, “Who is the State for purposes of Article 39.14?,” and the answer is not very satisfying. “Article 39.14’s use of the word ‘State’,” the Court concluded, “means exactly what one would think it means—the ‘State of Texas.’”[9] The court also explains in several passages that the word “State” most naturally means a party to the litigation.[10] Keep that in mind. It will come in handy later.
Heath tells us we can be confident that the banner of “the State of Texas” will cover law enforcement and third-party contractors such as crime labs. The rationale is because Watkins held that the duty to disclose is broadened, not narrowed, beyond the due-process constitutional duties under Brady. And even under Brady, it had been determined for decades that exculpatory, mitigating, or impeachment evidence in the possession of law enforcement on the prosecution team was subject to disclosure. Ergo, references to “the State” in the MMA for sure include law enforcement, third-party contractors such as crime labs, and presumably other state agencies that have not previously been included in an analysis of discovery obligations.
Of course, this is hardly breaking news. As mentioned above, it was already more or less settled law that if the police agency that handled the arrest in a case had Brady information in its file and didn’t turn it over to the prosecutor office, it was a discovery violation. At the same time, Heath is one of the first steps in setting down a test for who will be considered “the State” moving forward as Article 39.14 is further interpreted in the coming years.
Expanding Brady’s definition of “the State”
While the Court didn’t give us a bright-line test to determine who is and who isn’t a state actor in a given scenario, it’s at least going to include any agency or organization that had been found to be a state actor under a Brady analysis. But remember that the Court has said plain as day that the duty to disclose is wider under the MMA than it was under Brady, and this leads to the conclusion that the actors and agencies required to disclose information is likewise going to be broadened.
This means that the “prosecution team” analysis is still likely a good starting point to determine if a document or other piece of evidence in the possession of some actor besides a prosecutor office will need to be disclosed. In other words, if they would have been part of the prosecution team before Heath, assume they still are. But because the definition of “who is the State” is being broadened, not narrowed, by the CCA in interpreting Article 39.14, you can no longer end your analysis with a “prosecution team” determination.
For the last 30 years, Texas courts have frequently turned to Kyles for a definition of who is part of the prosecution team, holding those who act on “the government’s behalf in the case” to be part of the team.[11] That doesn’t sound so much different from “a party to the litigation.” Certainly, pre-Heath, an actor who took an affirmative role in contributing to the case would have been considered a state actor, and anything in that actor’s possession would be subject to discovery. That hasn’t changed. But what about state agencies that are not involved in the case, yet have documents in their possession that might be helpful to a defensive theory? Are they a party to the case by virtue of being an agency of the State of Texas?
For example, in Shanks v. State, an inmate was convicted of assaulting a correctional officer (CO) at his prison.[12] His defense was that the CO used excessive force against him. As it happens, that CO’s lieutenant had himself been disciplined in the past for excessive force, and Shanks argued that this was indicative of a culture where you could still be promoted despite wrongdoing, making his defense theory (that he was actually the victim) more credible.
No one contended that the prosecutor knew about the lieutenant’s disciplinary record, but Shanks argued that the Texas Department of Criminal Justice (TDCJ) was part of the prosecution team, and therefore knowledge of that disciplinary record should have been imputed to the prosecutor.[13] The Texarkana Court of Appeals held that TDCJ was not part of the prosecution team under these facts, so even if there was Brady information in that disciplinary record, the prosecutor was under no obligation to discover and disclose it.[14]
This is a good place to stop and mention another relevant holding in Heath, that the prosecutor is always on the hook for exculpatory, mitigating, or impeachment evidence or information in the possession of the State, whether the prosecutor knows that evidence is there or not. Under Heath, “the State has an obligation to exercise reasonable diligence to ascertain what discoverable evidence is at its disposal.”[15] This “reasonable diligence” standard sort of meshes with the “party to the litigation” standard and makes it even more clear that the number of rocks prosecutors must turn over to adequately perform our discovery duties has increased, perhaps significantly.
If Shanks were decided today, would there be a different ruling? There’d at least be a different analysis. For starters, the Court of Criminal Appeals held in 1951 that a prosecuting witness was a party to the case.[16] Does this pre-MMA decision mean that as a quasi-party to the case, the victim can be considered “the State?” Also in Shanks, the assault happened between a TDCJ employee and a TDCJ inmate on TDCJ property while the inmate was under the supervision of TDCJ. Does reasonable diligence require the State to obtain and disclose the disciplinary records of everyone involved in the incident plus everyone up the relevant chain of command?
The key word here is “reasonable.” It seems like a tall task for a prosecutor to telepathically know what is in the files of every employee up the chain of command at TDCJ. Perhaps such intuitive mandates will not be the standard to which prosecutors are held in the future, and the pivot point of “reasonableness” gives courts broad discretion in making these rulings.
A more common situation will most likely arise with Child Protection Services (CPS) records, given the frequency with which prosecutors deal with them. In Harm v. State, decided by an en banc Court of Criminal Appeals, the appellant was convicted of indecency with a child and sentenced to 12 years in prison.[17] She argued on appeal, however, that there were exculpatory CPS records that showed that the victim had made unfounded allegations of sexual assault in the past and that the victim had also engaged in inappropriate sexual behavior.[18] These records were not known to the prosecutor and had not been shared with the defense.
The prosecution was aware of CPS involvement with the victim. In fact, prosecutors called a CPS caseworker to the stand in the trial.[19] But the prosecution did not know of the separate investigation into the victim’s prior allegations or her previous behavior.
The court held that, although CPS workers can sometimes be actors of the State and therefore could fall under the big tent of Brady, in this case, they simply weren’t. The investigation into the victim was a separate one from the case being tried, and the investigation was not a criminal one.[20] Therefore, CPS was not part of the “prosecution team.”
Compare that result with the analysis that would be applied under Heath. The relevant question, at least a relevant question, now appears to be predominately whether the actor in question could be considered a party to the litigation. Is there any doubt under these facts that CPS was a party to the suit? A CPS caseworker was literally a material witness who had engaged in an investigation into the victim in the case. The next relevant question appears to be whether reasonable diligence on the part of the prosecutor could have ascertained those records and made them available to the defense before trial? That also seems likely.
These are just two examples of the way the game has now changed regarding the analysis of prosecutors’ discovery obligations. Don’t think of them as Brady obligations. That’s going to keep you narrowly focused on your constitutional obligations and will therefore prevent you from seeing the bigger picture. The duty now arguably extends outside of the “prosecution team” and to anyone who is a party to the lawsuit. That will certainly still include anyone acting on behalf of the government but may also include others you don’t make a habit of checking with.
Back to Billy Moore
And finally, let’s reconsider the case of Billy Moore. We know that at the time the case was decided, the law was that if you weren’t part of the prosecution team, your knowledge was not to be imputed to the prosecutor in the case. In a post-Heath world, could a trial judge find a discovery violation occurred when the State failed to learn, and therefore did not disclose, that a necessary witness was under investigation for a serious criminal act by a statewide law enforcement agency (i.e., the Attorney General’s Office)?
The Heath analysis indicates that the answer is “no.” There isn’t a compelling argument that the Attorney General was a party to the Moore case no matter how you look at it. And it definitely sounds unreasonable to expect a prosecutor to know, with no prompting, that another unconnected agency had opened an undisclosed investigation into a witness. Will that line of reasoning save the day for prosecutors? Only time, and the next set of opinions interpreting the Michael Morton Act, will tell.
Conclusion
If you’re afraid that the likes of Watkins and Heath are going to cause an existential crisis in the world of criminal discovery for prosecutors, you can take at one big step back from the edge. There are still boundaries in place that protect you, your case, and your law license from the consequences of a discovery violation.
But the tectonic plates of discovery law are definitely shifting. And that means the State must be ready to change as well. You know—just as soon as we figure out who the State is.
[1] State v. Moore, 240 S.W.3d 324, 326 (Tex. App.—Austin 2007, pet. ref’d).
[2] Id. at 327.
[3] Id. at 328.
[4] United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979).
[5] “This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995).
[6] Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021).
[7] “On the whole, the statutory changes broaden criminal discovery for defendants, making disclosure the rule and nondisclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. Our Legislature did not limit the applicability of Article 39.14(h) to ‘material’ evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland.” Id. at 277 (Tex. Crim. App. 2021).
[8] State v. Heath, No. PD-0156-22, 2024 WL 2952387 (Tex. Crim. App. June 12, 2024), as corrected (June 14, 2024).
[9] Id. at 10.
[10] Id. at 13.
[11] Kyles at 437.
[12] Shanks v. State, 13 S.W.3d 83 (Tex. App.—Texarkana 2000, no pet.).
[13] Id. at 85.
[14] Id. at 86.
[15] Heath at 16.
[16] Devine v. State, 156 Tex. Crim. 530, 533, 244 S.W.2d 232, 234 (1951).
[17] Harm v. State, 183 S.W.3d 403, 405 (Tex. Crim. App. 2006).
[18] Id.
[19] Id. at 406.
[20] Id. at 407-408.