The State of Texas v. Dwayne Robert Heath

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0156-22

STATE OF TEXAS

v.

DWAYNE ROBERT HEATH, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY

NEWELL, J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined. KEEL, J., filed
a dissenting opinion in which KELLER, P.J., and YEARY, J., joined.

Does the mandate in Article 39.14(a) of the Texas Code of Criminal

Procedure that the “the state” produce discovery “as soon as practicable after

receiving a timely request” include discoverable items which, unbeknownst to

the prosecuting attorney, are in the possession of law enforcement agencies?
Heath – 2

Yes. In this context, “the state” means the State of Texas and includes

prosecutors and law enforcement. “As soon as practicable” as the phrase

appears in Article 39.14(a) means as soon as reasonably possible and does

not contain a knowledge requirement on behalf of the prosecution. Thus,

items discoverable under Article 39.14(a) that are in the possession of law

enforcement must be produced as soon as practicable after the State’s receipt

of a timely request for discovery. 1 0F This case also requires us to consider

whether a trial court has the authority to exclude evidence that was not timely

disclosed by the State absent a showing of bad faith or prejudice. We agree

with the court of appeals that under the circumstances of this case the trial

court had the authority to exclude the evidence at issue. Accordingly, we

affirm the judgment of the court of appeals.

Background

Appellee was indicted with the offense of injury to a child in 2016. 2 Trial 1F

counsel was appointed and several days later, on March 23, 2017, counsel

emailed a request for discovery to the District Attorney’s Office. The email

read simply “[c]an I get discovery on this client?” and included the relevant

1
Additionally, Article 39.14(h) creates an automatic duty for the state to disclose exculpatory,
impeaching, or mitigating evidence that exists even if the defendant does not specifically
request disclosure of such evidence. Tex. Code Crim. Proc. Ann. art. 39.14(h). In this case,
as will be explained in greater detail below, Appellee only argues that the State violated Article
39.14(a).

2
Tex. Penal Code Ann. § 22.04(a)(3).
Heath – 3

cause number. 3 Thereafter, the State provided discovery to the defense which
2F

included law enforcement records, child protective services records, and

photographs. 4 3F

The case was placed on the trial docket. At three different jury trial

settings the State announced “ready” for trial, 5 but the case was reset each
4F

time apparently because another case went to trial. Appellee’s case was finally

set to proceed to trial on May 29, 2018, the case’s fourth jury trial setting. 6 5F

Six days before the fourth jury trial setting, the prosecutor learned of

the existence of a 911 call placed by the complainant’s mother on the date of

the alleged offense. The prosecutor emailed Appellee’s counsel that additional

discovery was available. Two days later, Appellee filed a pre-trial application

for a writ of habeas corpus and motion to suppress the 911 call alleging that

the evidence was improperly withheld in violation of Article 39.14 of the Code

of Criminal Procedure and various constitutional provisions. 7 6F

3
The State did not argue to the trial court or on appeal that this request was insufficiently
detailed to trigger the prosecutor’s duty to provide discovery under the statute. We assume
without deciding that it was sufficient.

4
The trial court’s findings of fact indicate that discovery was provided sometime before July
20, 2017.

5
The parties appeared for trial on October 16, 2017, January 22, 2018, and February 26,
2018.

6
A pretrial motions hearing was set for May 11, 2018, and a status conference was set for
May 18, 2018.

7
Appellee also argued that the recording of the 911 call was improperly withheld under the
Sixth, Ninth, and Fourteenth Amendments of the United States Constitution, and Article 1,
sec. 10 and 19 of the Texas Constitution.
Heath – 4

The trial court held a hearing on Appellee’s motion to suppress the

morning of trial. Appellee argued the 911 call, which was made available to

him six days prior to trial and fourteen months after his initial discovery

request, should be excluded based upon a violation of the Michael Morton Act,

which requires discovery in the possession, custody, or control of the state be

provided as soon as practicable upon request. 8 He argued that “the state,”
7F

as the term is used in Article 39.14, encompasses law enforcement, and thus,

includes the Sheriff’s Office’s dispatch, who had been in possession of the 911

call since 2016.

The prosecutor responded that the District Attorney’s Office was

unaware of the 911 call’s existence because the police report only referenced

a “call for service” that was answered by a deputy. The prosecutor advised

the trial court that she learned of the 911 call when she met with the

complainant’s mother who told her that she had called 911 on the date of the

alleged offense. The prosecutor further explained that she requested a copy

of the recording a few days after speaking with the complainant’s mother and

provided it to Appellee’s counsel as soon as she received it. Therefore, the

prosecutor argued, there was no violation of the Michael Morton Act.

The prosecutor also argued that because there had been no showing of

bad faith by the State, the appropriate remedy for the delayed disclosure

8
Michael Morton Act, Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.
Heath – 5

would be to grant a continuance to give the defense more time to review the

evidence rather than to exclude the evidence. 9 Appellee stated he was not
8F

asking for more time. Appellee argued that bad faith was not required under

Article 39.14(a), as amended by the Michael Morton Act, because it only

requires that “the state,” which includes law enforcement, provide discovery

“as soon as practicable.” 10 Appellee did not allege that the prosecutor had
9F

acted in bad faith but instead argued that the recording had been in the

possession of “the state” since 2016 and was requested fourteen months prior,

making the disclosure untimely. The prosecutor responded that “as soon as

practicable” means as soon as the prosecution becomes aware of evidence.

After considering the arguments of counsel, the trial court rejected the

State’s argument for a continuance 11 and granted Appellee’s motion to
10F

exclude the 911 call. Appellee announced he was ready for trial. Rather than

proceed to trial, the trial court granted the State’s unopposed request for a

9
At the evidentiary hearing, Appellee specified that he was not requesting a continuance and
when the State asserted it did not want to proceed without the 911 call, the trial court
responded that it would not grant the State’s request for a continuance.

10
Tex. Code Crim. Proc. Ann. art. 39.14(a).

11
The State did not file a sworn, written motion for a continuance. See Tex. Code Crim. Proc.
Ann. art. 29.03 (“A criminal action may be continued on the written motion of the State or of
the defendant, upon sufficient cause shown; which cause shall be fully set forth in the
motion.”); Tex. Code Crim. Proc. Ann. art. 29.08 (“All motions for continuance must be sworn
to by a person having personal knowledge of the facts relied upon for the continuance.”). In
cases in which a defendant appeals the denial of an oral motion for continuance, we have held
that the failure to file a written motion for continuance forfeits any claim on appeal. Anderson
v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009) (“Thus, if a party makes an unsworn
oral motion for continuance and the trial judge denies it, the party forfeits the right to
complain about the judge’s ruling on appeal.”).
Heath – 6

stay of the proceedings so that the State could appeal the trial court’s ruling

excluding the evidence of the 911 call.

At the State’s request, the trial court entered written findings of fact and

conclusions of law. The trial court made the following findings of fact:

• A 911 call was made on or about November 5, 2016, regarding
this alleged offense. Law enforcement has maintained a
recording of this 911 call since it was made.

• Defendant requested discovery from the Office of the Criminal
District Attorney of McLennan County on March 20, 2017.

• The District Attorney provided discovery to Defendant
sometime before July 20, 2017, that consisted of written
reports and photographs. The written reports make no
reference to a 911 call.

• The District Attorney failed to ascertain the existence of the
911 recording by the first pretrial setting on September 29,
2017.

• The District Attorney failed to ascertain the existence of the
911 recording for the settings on October 6, 2017, October 16,
2017, January 5, 2018, January 12, 2018, January 22, 2018,
February 9, 2018, February 16, 2018, February 26, 2018, May
11, 2018, and May 18, 2018.

• A member of the District Attorney’s office met with a witness
or witnesses on or about May 18, 2018, and first learned that
a call to 911 had been made. The prosecutor promptly
requested a recording of this call from the McLennan County
Sheriff’s Department.

• The District Attorney emailed defense counsel on May 23,
2018, that additional discovery was available. This additional
discovery was a copy of the 911 call.

• Defense counsel obtained this additional discovery on or about
May 23, 2018.
Heath – 7

• The case was set, and all parties were ready for trial by jury to
begin May 29, 2018.

The trial court made the following conclusions of law:

• The 911 recording at issue is evidence subject to disclosure
under Article 39.14(a).

• The State’s duty of disclosure extends to discoverable items
“that are in the possession, custody, or control of the state or
any person under contract with the state.”

• Under Article 39.14, items in possession of the State include
items in possession of law enforcement agencies.

• A District Attorney has “a specific duty . . . to ascertain what
evidence within the terms of [Article 39.14 is] held by the police
and to make such evidence available to the defense.”

• A District Attorney has a statutory duty to provide all relevant
discovery “as soon as practicable after receiving a timely
request from the defendant.”

• When Defendant requested discovery on March 20, 2017, this
commenced a “specific duty” on the District Attorney’s part to
ascertain what discoverable evidence was held by the Sheriff’s
department and disclose it “as soon as practicable.”

• Under the facts of this case, the District Attorney’s failure to
disclose the 911 recording until the week before trial (more
than 18 months after an agency of the State first took
possession of the recording and more than 14 months after
discovery was requested) constitutes a violation of the duty
imposed by the plain language of Article 39.14(a) that “as soon
as practicable” “the state shall produce.”

• Because the District Attorney failed to comply with Article
39.14(a), the recording is excluded from the evidence.

Appeal
Heath – 8

The State appealed. 12 The State argued that the trial court misapplied
11F

the remedy for a violation of Article 39.14 because there was no showing of a

willful violation by the State. According to the State, the appropriate remedy

should have been a continuance rather than excluding the evidence. The court

of appeals did not reach that issue, however. Instead, the court of appeals

held that the trial court abused its discretion to exclude the 911 call because

defense counsel’s email requesting discovery was not sufficient to trigger the

requirements of Article 39.14(a). 13 12F The court of appeals reasoned that

because counsel’s email did not refer to Article 39.14 or specify any items

sought to be produced by the State, it did not require the State to comply with

Article 39.14. 14 13F

Appellee sought discretionary review before this Court challenging the

court of appeals’ conclusion on several grounds. We held that the court of

appeals erred to address an issue not presented to the trial court or raised by

the parties on appeal. 15 The State had not argued before the trial or appellate
14F

12
Tex. Code Crim. Proc. Ann. art. 44.01(a)(5)(“ The state is entitled to appeal an order of a
court in a criminal case if the order: (5) grants a motion to suppress evidence, a confession,
or an admission, if jeopardy has not attached in the case and if the prosecuting attorney
certifies to the trial court that the appeal is not taken for the purpose of delay and that the
evidence, confession, or admission is of substantial importance in the case[.]”).

13
State v. Heath, 582 S.W.3d 495, 497 (Tex. App. – Waco 2018).

14
Heath, 582 S.W.3d at 497.

15
State v. Heath, PD-0012-19, 2019 WL 6909439, at *2 (Tex. Crim. App. 2019) (not
designated for publication) (“Generally, ‘appellate courts are free to review ‘unassigned error’
– a claim that was preserved in the trial court below but was not raised on appeal.’ However,
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.”) (citing Sanchez v.
Heath – 9

court that counsel’s discovery request was inadequate or failed to trigger its

duty under Article 39.14. 16 Thus, we held the issue was not preserved and
15F

the court of appeals erred to reach an unassigned error that was subject to

procedural default. 17 We reversed and remanded the case to the lower court
16F

for a resolution of the issues raised by the State. 18 17F

On remand, the court of appeals affirmed the trial court’s order granting

the motion to suppress. 19 18F The court reasoned that the legislative

amendments to Article 39.14 substantively changed the process for discovery

disclosures and, as a result, “once discovery of an item is requested, the State

now has an affirmative duty to search for the item and produce it in a timely

manner.” 20 19F The court of appeals further stated 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.’” 21 According to the court of
20F

State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (quoting Pena v. State, 191 S.W.3d 133,
136 (Tex. Crim. App. 2006)).

16
Id.

17
Id.

18
Id.

19
State v. Heath, 642 S.W.3d 591, 593 (Tex. App. – Waco 2022).

20
Id. at 597.

21
Id.
Heath – 10

appeals there was “no dispute that the 911 call was in the possession of the

State, which is not limited to the prosecutor, but includes law enforcement

and related agencies.” 22 The court went on to explain, “[t]he prosecutor need
21F

not know what it is that is not being produced, but the failure to even look to

see if there is something responsive to the request in light of the duty to

search out responsive discovery is adequate for the trial court to fashion a

remedy appropriate to the situation.” 23 The court of appeals also held the
22F

trial court’s remedy of excluding the recording was not an abuse of discretion

considering the State was presumably ready to proceed to trial without the

911 call at three prior jury trial settings. 24 The court of appeals concluded
23F

that this was an appropriate sanction for the failure to timely produce the

recording and affirmed the trial court’s granting of Appellee’s motion to

suppress. 25 24F

Discretionary Review

The State now seeks discretionary review, and in two issues, asks this

Court to determine:

1. Has the State’s statutory duty to disclose evidence “as soon as
practicable” been violated if the prosecutor fails to disclose an item of
evidence the D.A.’s Office does not know exists but that has been in
police custody for months?

22
Id. at 595 (“The parties further do not dispute that the recording was required to be
produced because it was ‘material’ as required in article 39.14(a).”).

23
Id. at 597.

24
Id.

25
Id. at 598.
Heath – 11

2. If so, does the trial court have authority to impose an exclusionary
sanction when there has been no bad faith or demonstrable prejudice to
the opposing party and the statute provides for no such sanction?

The State argues, as it did before the trial court, that Article 39.14(a)’s

directive to produce discovery “as soon as practicable” applies only to items

in the prosecutor’s possession, custody, or control, which does not extend to

what is in the exclusive possession, custody, or control of law enforcement

agencies. Although the State did not argue on appeal that the word “state”

in Article 39.14(a) does not include law enforcement agencies, it contends

that the court of appeals nevertheless erred to conclude that the issue was

not disputed because it was disputed before the trial court and therefore, was

preserved for a merits determination by this Court. 26 25F

The State argues on discretionary review that the term “state” in Article

39.14(a) is most reasonably interpreted to mean the prosecuting attorney.

According to the State, the Michael Morton Act definitively established that

“the state” does not include law enforcement because the Legislature replaced

“agencies” in the phrase “in the possession, custody, or control of the state or

any of its agencies” with “any person under contract with the state.” 27 The 26F

26
Id. at 595 (“There is no dispute that the 9-1-1 recording was in the possession of the State,
which is not limited to the prosecutor, but includes law enforcement and related agencies.”).
The State argues the issue was preserved in the trial court by the prosecutor’s argument that
Article 39.14 only required the 911 call to be disclosed when it came into the prosecution’s
possession or control.

27
Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.
Heath – 12

State further argues that even if Article 39.14 applies to evidence in law

enforcement’s possession, the trial court lacked authority to impose an

exclusionary remedy because there was no bad faith on the part of the State,

nor was Appellee prejudiced by the late disclosure.

Appellee contends that Article 39.14(a) extends to law enforcement

agencies because the State has constructive possession of items possessed

by State agencies. According to Appellee, Article 39.14(a) imposes a duty on

the prosecutor to ascertain discoverable matters in the possession of law

enforcement agencies “as soon as practicable.” Appellee further argues that

the State’s interpretation would render Article 39.14’s reference to “counsel

for the state” meaningless and in turn, would undermine the legislative intent

behind the statute. 28 Appellee continues that the Legislature removed the
27F

phrase “of any of its agencies” in order to remove statutory surplusage; since

items in the possession of State agencies are also in the constructive

possession of the State, the items are therefore subject to the State’s control.

Finally, Appellee maintains that the trial court had common law or inherent

authority to exclude the 911 call based on an implied finding of willful

misconduct which, Appellee concedes, is required for an exclusion of evidence

based on a discovery violation. Appellee points to the State’s announcements

of ready for trial on four occasions and the length of time that “the state”

28
Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 13

possessed the recording as evidence of implied willful misconduct on behalf of

the prosecutor.

Standard of Review

We review a trial court’s decision to exclude evidence under an abuse of

discretion standard. 29 28F A trial court abuses its discretion if its decision lies

outside of the zone of reasonable disagreement. 30 An appellate court may
29F

not substitute its own decision for that of the trial court. 31 As long as a trial
30F

court’s evidentiary ruling is within the zone of reasonable disagreement, this

Court will not intercede. 32 31F

In reviewing a trial court’s ruling on a motion to suppress, we apply a

bifurcated standard of review that gives almost total deference to the trial

court’s determination of historical facts that the record supports and consider

de novo the application of the law to the facts. 33 We defer to the trial court’s
32F

findings unless they are unsupported by the record and view the evidence in

the light most favorable to the trial court’s ruling. 34 We also afford almost
33F

29
Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014) (citing Oprean v. State, 201
S.W.3d 724, 727 (Tex. Crim. App. 2006) (“When reviewing a trial judge’s decision to admit
or exclude evidence, an appellate court must determine whether the judge’s decision was an
abuse of discretion.”)).

30
Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).

31
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

32
Lopez, 86 S.W.3d at 230.

33
State v. Cortez, 548 S.W.3d 198, 203 (Tex. Crim. App. 2018).

34
State v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).
Heath – 14

total deference to the trial judge's rulings on mixed questions of law and

fact when the resolution of those questions depends upon an evaluation

of credibility and demeanor. 35 We review de novo mixed questions of
34F

law and fact that do not depend on an evaluation of credibility and

demeanor. 36 The trial court’s ruling on a motion to suppress will be reversed
35F

only if it is arbitrary, unreasonable, or outside the zone of reasonable

disagreement. 37 36F

Though the record is not as well developed as it could have been, the

material facts are undisputed. 38 Shortly after appointment, Appellee’s counsel
37F

requested discovery in Appellee’s case. Neither party disputes that the 911

call fell under that discovery request. However, the 911 call was not

specifically referenced in the records turned over to the State and produced

to the defense. The State learned of the 911 call just before the fourth trial

setting during a witness interview after having announced ready for trial on

three prior occasions. The State promptly requested a copy of the call and

turned it over to the defense six days before trial. Appellee asked the trial

35
Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).

36
Id.

37
Cortez, 548 S.W.3d at 203.

38
Heath, 642 S.W.3d at 593 n. 3 (noting that the record of the hearing where the prosecutor
set forth what efforts were taken to ascertain what evidence was in the State’s possession
was not thorough and that the result might have been different had the prosecutor established
what she had done to find what evidence was in the State’s possession prior to May of 2018).
Indeed, the record does not contain a copy of a recording of the 911 tape at the center of the
dispute.
Heath – 15

court to suppress the recording in light of the discovery violation, he did not

seek a continuance or otherwise argue he had been prejudiced by the untimely

disclosure.

The trial court’s decision to grant Appellee’s motion to suppress the 911

call requires us to interpret Article 39.14. Statutory construction is a question

of law that we review de novo. 39 38F When interpreting statutes, we seek to

effectuate the collective intent or purpose of the legislators who enacted the

legislation. 40 Legislative intent isn’t the law, but discerning legislative intent
39F

isn’t the end goal, either. 41 Rather, the end goal is interpreting the text of
40F

the statute. 42 41F In so doing, we necessarily focus our attention on the literal

text of the statute in question and attempt to discern the fair, objective

meaning of the text at the time of its enactment. 43 42F

In interpreting the text of a statute, we must presume that every word

has been used for a purpose and that each word, phrase, clause, and sentence

should be given effect if possible. 44 We do not focus solely upon a discrete
43F

provision; we look at other statutory provisions as well to harmonize

39
Watkins v. State, 619 S.W.3d 265, 273 (Tex. Crim. App. 2021).

40
Boykin v. State, 818 S.W.3d 782, 785 (Tex. Crim. App. 1985).

41
Watkins, 619 S.W.3d at 272.

42
Id.

43
Boykin, 818 S.W.3d at 785.

44
State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).
Heath – 16

provisions and avoid conflicts. 45 When dealing with the passage of a particular
44F

act, such as the one at issue here, we look to the entire act in determining the

legislature’s intent with respect to a specific provision. 46 45F We construe an

amended statute as if it had originally been enacted in its amended form,

mindful that the legislature, by amending the statute, may have altered or

clarified the meaning of earlier provisions. 47 When a particular term is not
46F

legislatively defined but has acquired a technical meaning, we construe that

term in its technical sense. 48 47F We may also consult standard or legal

dictionaries in determining the fair, objective meaning of undefined statutory

terms, and legal dictionaries to determine the meaning of undefined legal

terms. 49 48F

Analysis

Prior to 1965, no Texas statute provided for discovery or authorized trial

judges in criminal proceedings to order the State to produce or permit for

45
See, e.g., Murray v. State, 302 S.W.3d 874, 877-79 (Tex. Crim. App. 2009) (interpreting
the phrase “included in the indictment” in Article 4.07 of the Code of Criminal Procedure after
considering Articles 37.08 and 37.09 of the Code of Criminal Procedure).

46
See, e.g., Taylor v. Firemen’s & Policemen’s Civil Service, 616 S.W.2d 187, 190 (Tex.
1981); see also Ex parte Woods, 52 Tex. Crim. 575, 108 S.W. 1171, 1176 (1908).

47
Powell v. Hocker, 516 S.W.3d 488, 493 (Tex. Crim. App. 2017); see also Mahaffey v. State,
316 S.W.3d 633, 642 (Tex. Crim. App. 2010) (citing Getts v. State, 155 S.W.3d 153, 158
(Tex. Crim. App. 2005)).

48
See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000).

49
Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
Heath – 17

inspection items the State intended to use at trial. 50 This Court recognized
49F

the unfairness of that trial-by-fire system and welcomed a law concerning

pretrial discovery. 51 With the enactment of the Code of Criminal Procedure in
50F

1965 came Article 39.14, which provided:

Upon motion of the defendant showing good cause therefor and
upon notice to the other parties, the court in which an action is
pending may order the State before or during trial of a criminal
action therein pending or on trial to produce and permit the
inspection and copying or photographing by or on behalf of the
defendant of any designated documents, paper, written statement
of the defendant (except written statements of witness and except
the work produce of counsel in the case and their investigators
and their notes or report), books, accounts, letters, photographs,
objects or tangible things not privileged, which constitute or
contain evidence material to any matter involved in the action and
which are in the possession, custody, or control of the State or
any of its agencies. 5251F

As we observed in Watkins v. State, the original version of Article 39.14 was

patterned after its civil counterpart, Rule 167 of the Rules of Civil Procedure. 53 52F

We noted that one possible justification for this was that civil lawyers who

were familiar with the civil discovery scheme would not have wanted to learn

50
See, e.g., Lopez v. State, 252 S.W.2d 701, 705 (Tex. Crim. App. 1952) (finding no error in
refusal to grant a motion to require the district attorney to allow the defendant to copy and
inspect his confession and other evidence prior to trial noting, “[i]t has been the consistent
holding of this Court, through the years, that such evidence, prior to its introduction in
evidence, is not a public document and not subject to inspection of appellant prior to the
moment it is offered”); Smith v. State, 240 S.W.2d 783, 786 (Tex. Crim. App. 1951) (“We
know of no statutory requirement and no holding of this Court which would require that the
prosecution present to the defense the written confessions and exhibits to be used in the
prosecution.”).

51
Smith, 240 S.W.2d at 786 ( recognizing “the unfairness which sometimes confronts one on
trial under such circumstances”).

52
Acts 1965, 59th Leg., R.S., ch. 722, Tex. Gen. Laws 317, 475.

53
Watkins, 619 S.W.3d at 282.
Heath – 18

an entirely different system when representing indigent defendants. 54 53F We

also set out the text of Rule 167. Comparison of Rule 167 to the original

version of Article 39.14 reveals that Article 39.14 replaced references to a

party ordered by a trial court to disclose evidence with “the State.” 55 54F

Article 39.14 remained untouched until 1999 when the preceding was

cast as subsection (a), and subsection (b) was added to provide for the

reciprocal pretrial disclosure of expert witnesses upon notice and the filing of

a motion. 56 At that time, subsection (b) provided:
55F

On motion of a party and on notice to the other parties, the court
in which an action is pending may order one or more of the other
parties to disclose to the party making the motion the name and
address of each person the other may use at trial to present
evidence under the Rules 702, 703, and 705, Texas Rules of
Evidence [concerning expert witness testimony]. The court shall
specify in the order the time and manner in which the other party
must make the disclosure to the moving party, but in specifying
the time in which the other party shall make the disclosure the
court shall require the other party to make the disclosure not later
than the 20th day before the date trial begins.

Until 2013, Article 39.14 consisted of these two subsections. Under these

earlier versions of the statute, this Court recognized that there was no general

54
Id.

55
Id. at 282-83.

56
Act of June 18, 1999, 76th Leg., R.S., ch. 578, Tex. Gen. Laws, 3118, 3118.
Heath – 19

right to discovery in Texas. 57 Likewise, there is no general right to discovery
56F

under the federal constitution. 58 57F

In 2013, however, the Michael Morton Act “revamped Article 39.14

completely,” “overhaul[ed]” discovery in Texas, and “[o]n the whole” made

“disclosure the rule and non-disclosure the exception” in Texas. 59 “According
58F

to the plain text of Article 39.14, criminal defendants now have a general

statutory right to discovery in Texas beyond the guarantees of due process.” 60 59F

The Michael Morton Act is understood to have broadened the State’s discovery

obligations. 61 60F This case calls for this Court to interpret Article 39.14, as

amended by the Michael Morton Act, to determine whether the State violated

its duty to disclose evidence “as soon as practicable” when the evidence was

possessed by a state law enforcement agency but not the prosecutor trying

the case.

Article 39.14(a) currently provides:

Subject to the restrictions provided by Section 264.408, Family
Code, and Article 39.15 of this Code, as soon as practicable after
receiving a timely request from the defendant the state shall
produce and permit the inspection and the electronic duplication,

57
Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App. 1980) (“appellant does not have
a general right to discovery of evidence in the possession of the State . . . Art. 39.14 makes
it clear that the decision on what is discoverable is committed to the discretion of the trial
court”) (internal citations omitted), abrogated on other grounds Ehrke v. State, 459 S.W.3d
606 (Tex. Crim. App. 2015).

58
Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

59
Tex. Code Crim Proc. Ann. art. 39.14(a); see Watkins, 619 S.W.3d at 277.

60
Watkins, 619 S.W.3d at 291.

61
Id. at 278.
Heath – 20

copying, and photographing, by or on behalf of the defendant, of
any offense reports, any designated documents, papers, written,
or recorded statements of the defendant or a witness, including
witness statements of law enforcement officers but not including
the work product of counsel for the state in the case and their
investigators and their notes or report, or any designated books,
accounts, letters, photographs, or objects or other tangible things
not otherwise privileged that constitute or contain evidence
material to any matter involved in the action and that are in the
possession, custody, or control of the state or any person under
contract with the state. The state may provide to the defendant
electronic duplicates of any documents or other information
described by this article. The rights granted to the defendant
under this article do not extend to written communication between
the state and an agent, representative, or employee of the state.
This article does not authorize the removal of the documents,
items, or information from the possession of the state, and any
inspection shall be in the presence of a representative of the
state. 62
61F

In relevant part, Article 39.14(a) imposes a duty upon the State to produce

discovery “as soon as practicable after receiving a timely request from the

defendant” excluding “the work product of counsel for the state.” 63 The duty 62F

to disclose includes evidence “not otherwise privileged that constitute or

contain evidence material to any matter involved in the action and that are in

the possession, custody, or control of the state or any person under contract

with the state.” 64 Previously, the statute required a motion showing good
63F

cause and a court order which commanded the State to produce “evidence

material to any matter involved in the action and which are in the possession,

62
Tex. Code Crim. Proc. Ann. art. 39.14(a).

63
Id.; see also Tex. Gov’t Code § 311.016(2) (“‘Shall’ imposes a duty.”).

64
Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 21

custody, or control of the State or any of its agencies.” 65 The statute has
64F

always explicitly excluded the State’s work product, consistent with its original

civil counterpart. 66 65F

Here, the 911 call is evidence material to the action and is not the work

product of counsel for the State or otherwise privileged. 67 66F Given that

Appellee’s counsel sent a discovery request within three days of appointment

and there was no objection to the adequacy of that request, there is no dispute

before us regarding the adequacy or timeliness of the request. 68 Rather, the 67F

parties dispute whether the State violated Article 39.14 by failing to produce

evidence that was in the possession of law enforcement but unknown to the

prosecutor. To answer this question, we must consider the meaning of the

phrases “the state” and “as soon as practicable” as used in Article 39.14(a).

As we explain in greater detail below, we hold that items in the

possession, control, or custody of “the state,” include items in the possession

of law enforcement. Moreover, the statute does not speak to the prosecution’s

state of mind, nor does it contain any mens rea limitation. Rather, the focus

of the statute is on the State’s obligation and ability to disclose evidence in

65
Tex. Code Crim. Proc. Ann. art. 39.14(a) (2009).

66
Tex. Code Crim. Proc. Ann. art. 39.14(a).

67
Neither party introduced a copy of the 911 call into the record in this case. However,
neither party appears to argue that it contains exculpatory evidence. We assume for the sake
of resolving the issues in this case that the 911 call contains only inculpatory information.

68
See Heath, 2019 WL 6909439, at *2 (holding any complaint that the discovery request was
inadequate under Article 39.14 was waived).
Heath – 22

the State’s possession, not whether a specific prosecutor knew that law

enforcement had the evidence in its possession. Thus, Article 39.14 can be

violated by a prosecutor’s non-disclosure of evidence due to law enforcement’s

failure to turn evidence over to the prosecution, even if law enforcement’s

possession of evidence is unknown to counsel for the State.

Who is “The State” for Purposes of Article 39.14?

As an initial matter, we must consider whether the State has preserved

its argument that we should construe the term “state” in Article 39.14 to mean

“counsel for the state.” 69 On appeal, the State argued only that the trial court
68F

abused its discretion to exclude the 911 call absent a showing that the

prosecutor acted willfully in failing to provide discovery. The State did not

argue that it is only obligated to turn over evidence in the prosecutor’s

possession, custody, or control. 70 On remand, the court of appeals held that
69F

the trial court acted within its discretion to exclude the call, noting “[t]here is

no dispute that the 9-1-1 recording was in the possession of the State, which

is not limited to the prosecutor, but includes law enforcement and related

agencies.” 71 70F On discretionary review, the State challenges this conclusion

arguing “the state” means the prosecutor and the call was disclosed when it

69
Tex. R. App. P. 33.1(a)(1).

70
Indeed, the State conceded at oral argument before this Court on Appellee’s petition for
discretionary review that the amendments to Article 39.14 extended its reach to all state
agents not just the prosecutor.

71
Heath, 642 S.W.3d at 595.
Heath – 23

became available to the prosecutor. The State contends it preserved this issue

at trial by arguing “as soon as practicable” means when the State becomes

aware of the evidence.

We agree with the State that it preserved the issue of whether “the

state” in Article 39.14 encompasses law enforcement. 72 Even though it did
71F

not raise the argument on appeal until its petition for discretionary review, the

State argued before the trial court that Article 39.14 only applied to

prosecutors. We granted review to consider the court of appeals’ decision on

this issue and Appellee does not challenge the State’s preservation argument

before us. Having determined the issue is properly before us, we now turn to

the meaning of “state” in Article 39.14.

Article 39.14’s use of the word “state” means exactly what one would

think it means—the “State of Texas.” And while the statutory reference to the

State of Texas necessarily includes the prosecutor as a representative of “the

state” just as a reference to the “defendant” necessarily includes a reference

to the defendant’s representative, by itself, the word “state” refers to the State

of Texas as a party to the lawsuit. It is not limited to the prosecutor trying

the case. Where the statute limits the word’s applicability to a particular

representative or agent of the State of Texas, it specifically does so. Any

general reference to the “state” refers to the State of Texas in its broadest

72
Tex. R. App. P. 33.1; see Sanchez, 209 S.W.3d at 121 (“appellate courts are free to review
‘unassigned error’ – a claim that was preserved in the trial below but was not raised on
appeal”).
Heath – 24

sense. And in doing so, it places a duty to disclose evidence upon the

prosecutor as well as law enforcement.

This interpretation best harmonizes the statute’s multiple different uses

of the word “state,” as well as the multiple instances in which the word “state”

is modified to specifically refer to a person acting on behalf of the State. This

interpretation is consistent with the original version of Article 39.14’s

substitution of the word “State” for the word “party” in the original civil

discovery counterpart. It is also consistent with Article 39.14’s later use of

the phrase “counsel for the state.” 73 By later modifying the word “state” with
72F

a specific reference to “counsel,” the text clearly uses the word “state” as a

reference to the State of Texas as a party to the lawsuit.

Moreover, the Legislature’s use of the phrase “counsel for the state” to

exclude work product from the State’s discovery obligations would make little

sense if we were to construe “state” as limited only to the prosecutor. 74 This 73F

would effectively require us to read the statute to say, “but not including the

work product of counsel for counsel in the case.” Further, Article 39.14 has

always contained an exception from discovery for “the work product of counsel

in the case,” but the Michael Morton Act modified “counsel” with the words

73
Tex. Code Crim. Proc. Ann. art. 39.14(a) (excluding from discovery the “work product of
counsel for the state”).

74
Id.
Heath – 25

“for the state.” 75 If we were to construe “the state” to mean only “counsel for
74F

the state,” this legislative change would be meaningless. 76 75F

This interpretation is also consistent with Article 39.14(a)’s use of the

word “state” in the phrase “in the possession, custody, or control of the state,

or any person under contract with the state.” The State points to this phrase

to argue that the legislative amendment removing the reference to “any

agencies” of the State suggests the word “state” must now be interpreted to

mean only “counsel for the state” or otherwise to specifically exclude law

enforcement agencies. But this interpretation overlooks that the phrase goes

on to use the word “state” to refer to the State generally. If we were to read

the word “state” in this phrase to mean “counsel for the state” then the statute

would be referring to items in possession of those under contract with the

prosecutor. As a result, the prosecution would be under no obligation to

produce and permit inspection of items specifically listed as discoverable, such

as the witness statements and offense reports described in the statute, which

are generally in the possession of law enforcement rather than third-party

contractors with a District Attorney's Office. The more natural reading of the

statute is that the “state,” including law enforcement as well as third-party

75
Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.

76
Ex parte Trahan, 591 S.W.2d 837, 842 (Tex. Crim. App. 1979) (“In enacting an amendment
the Legislature is presumed to have changed the law, and a construction should be adopted
that gives effect to the intended change, rather than one that renders the amendment
useless.”).
Heath – 26

contractors with the state such as crime laboratories, 77 has a duty to disclose
76F

evidence. That a prosecutor may be responsible in practice for carrying out

the duty to disclose 78 does not equate to a textual basis for a limitation on
77F

the meaning of “state” as it is used in the statute.

Additionally, providing an exception to the disclosure of discoverable

evidence when it is only in the possession of law enforcement and not in the

possession of the prosecutor would cause an irreconcilable conflict with Article

39.14(h). The Michael Morton Act added subsection (h) to Article 39.14, which

now provides:

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. 7978F

This subsection in Article 39.14 imposes a free-standing duty on “the state”

to disclose all exculpatory, impeaching, and mitigating evidence in its

77
See, e.g., Tex. Gov’t. Code Ann. § 411.144(f) (authorizing the director of the Texas
Department of Public Safety to contract with “a laboratory, state agency, private entity, or
institution of higher education for services to perform DNA analyses.”); see also Tex. Code
Crim. Proc. Ann. art. 38.35 (a)(1) (defining “crime laboratory” as including “a public or private
laboratory or other entity that conducts a forensic analysis subject to this article”); Rhomer
v. State, 569 S.W.3d 664, 672-75 (Tex. Crim. App. 2019) (Hervey, J. concurring) (setting out
statutes and rules related to crime laboratory accreditation and the licensing of forensic
analysts in Texas); see, e.g., TEXAS FORENSIC SCIENCE COMMISSION,
https://fsc.txcourts.gov/AccreditedLabPublic (last visited June 3, 2024) (providing a
searchable list of crime laboratories accredited in Texas).

78
See Tex. Code Crim. Proc. Ann. art. 2.01 (“[e]ach district attorney shall represent the State
in all criminal cases in the district courts of his district”).

79
Tex. Code Crim. Proc. Ann. art. 39.14(h).
Heath – 27

possession, custody, or control that tends to negate guilt or reduce

punishment for the offense charged. 80 This duty exists regardless of whether
79F

the defense ever requests discovery from the State.

We have recognized that this duty is “much broader than the

prosecutor’s duty to disclose as a matter of due process under Brady v.

Maryland.” 81 80F But even under Brady, a prosecutor’s duty to disclose

exculpatory information has long been understood to require disclosure of

information held by law enforcement. 82 81F In the context of Brady, we have

recognized that law enforcement officers are agents of the State. 83 And an 82F

item under the exclusive control of law enforcement as an agent of the State

80
Watkins, 629 S.W.3d at 277 (citing Article 39.14(h)).

81
Id. (“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 v. Maryland.”) (citing Brady v. Maryland, 373 U.S. 83 (1963)).

82
See Pena v. State, 353 S.W.3d 797, 811 (Tex. Crim. App. 2011) (holding that the court of
appeals erred to conclude that Brady did not apply because the duty to disclose existed where
an audio recording was known to the State, which includes, “in addition to the prosecutor,
other lawyers and employees in his office and members of law enforcement connected to the
prosecution of the case”); Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (“Even
if the prosecutor was not personally aware of the evidence, the State is not relieved of its
duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and
employees in his office and members of law enforcement connected to the investigation and
prosecution of the case.”) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)); see also
Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (a Brady violation occurs when
the government fails to turn over evidence that is known only to the police and not the
prosecutor).

83
Id.
Heath – 28

is subject to disclosure under Brady. 84 Article 39.14(h) not only codifies the
83F

Brady requirement, it broadens its reach. 85 84F

The State’s reading of “the state” in Article 39.14(a) would conflict with

Article 39.14(h)’s codification and expansion of Brady because it would

necessarily limit the State’s obligation under subsection (h) to only

exculpatory, impeaching, or mitigating items in the possession, custody, or

control of the prosecutor. In this way, a prosecutor’s obligations under Article

39.14(h) would diminish rather than broaden the State’s obligation under

Brady and the Michael Morton Act. It would effectively return criminal

discovery to a pre-2013 paradigm in which there is no general right to

discovery beyond Brady v. Maryland. 86 85F

Finally, this interpretation of the word “state” is consistent with the

Legislature’s more recent passage of Art. 2.1397. In 2021, the Legislature

passed Senate Bill 111, entitled “Certain Duties of Law Enforcement Agencies

Concerning Certain Information Subject to Disclosure to a Defendant.” 87 The 86F

84
Id.

85
Watkins, 618 S.W.3d at 277.

86
But see S. Comm. on Crim. Justice, Bill Analysis, S.B. 1611, 83rd Leg. R.S. (as filed July
26, 2013) (Brady v. Maryland requires prosecutors to turn over to the defense any evidence
that is relevant to the defendant's case. However, Brady is vague and open to interpretation,
resulting in different levels of discovery across different counties in Texas. That is why a
uniform discovery statute is needed. S.B. 1611 will save attorney resources as well as
taxpayer dollars by limiting discovery disputes and increasing efficient resolution of cases, all
while reducing the likelihood of costly appeals and wrongful convictions).

87
Act of June 14, 2021, 87th Leg., R.S., ch. 510, 2021 Tex. Gen. Laws 1011, 1011 (effective
Sept. 1, 2021).
Heath – 29

Bill enacted Article 2.1397 of the Code of Criminal Procedure, which, in

relevant part, provides:

A law enforcement agency filing a case with the attorney
representing the state shall submit to the attorney representing
the state a written statement by an agency employee with
knowledge of the case acknowledging that all documents, items,
and information in the possession of the agency that are required
to be disclosed to the defendant in the case under Article 39.14
have been disclosed to the attorney representing the state.

If at any time after the case is filed with the attorney representing
the state the law enforcement agency discovers or acquires any
additional document, item, or information required to be disclosed
to the defendant under Article 39.14, an agency employee shall
promptly disclose the document, item, or information to the
attorney representing the state. 88 87F

The statute’s reference to items that must be disclosed to the defendant

under Article 39.14 recognizes that both the prosecutor and law enforcement

have a duty to disclose evidence under Article 39.14 even if the evidence is

not in the possession of the prosecution. The sponsors of this Bill recognized

that Article 39.14 requires prosecutors to disclose information that may be

known or not known to exist but was collected by and in the possession of the

investigating law enforcement agency. 89 88F They further recognized that

88
Tex. Code Crim. Proc. Ann. art. 2.1397(b), (c), repealed by Act of June 12, 2023, 88th
Leg., R.S., ch. 765, 2023 Tex. Gen. Laws, 1839, 1976 (renumbering Article 2.1397 to Article
2A.209 effective January 1, 2025).

89
S. Comm. on Crim. Justice, Bill Analysis, S.B. 111, 87th Leg. R.S. (as filed May 31, 2021).
The Sponsor’s Statement of Intent provided: “[u]nder Article 39.14 . . . prosecutors are
required to turn over to the defense all material evidence except those items that are
exempted by statute. Prosecutors are obligated to disclose this evidence to the defendant,
but in many instances, prosecutors are reliant on the release of evidence, known or not known
to exist, collected by the investigating law enforcement agency. If an investigating law
enforcement agency does not turn over information or evidence to the prosecutor, the
prosecutor can face sanctions including reprimand, censure, termination and even disbarment
Heath – 30

because discovery is facilitated by prosecutors, as representatives of the

State, prosecutors may ultimately face sanctions if a law enforcement agency

fails to disclose evidence. 90 The court of appeals observed that Article 2.1397
89F

recognizes that the state’s duty to produce discoverable information extends

beyond the prosecutor to items in the possession of law enforcement. 91 We 90F

agree. With this recognition, the statute seeks to facilitate disclosure and

prevent inadvertent non-disclosure, which supports Appellee’s interpretation

of Article 39.14(a).

The State contends, however, that Article 2.1397 recognizes that there

is a distinction between what is in the possession of law enforcement and what

is in the possession of the prosecution. The State argues that if evidence in

the possession of law enforcement is considered to be in the possession of the

prosecution, then Article 2.1397 would be unnecessary. On the contrary,

Article 2.1397 is an attempt to assist prosecutors in meeting Article 39.14’s

requirements by adding an obligation to law enforcement to attach a written

statement verifying that it has turned over evidence it was already obligated

to turn over; it helps ensure that the prosecutor has turned over evidence “as

for his subsequent failure to disclose the information to the defense. Law enforcement
agencies however, are not compelled to disclose the information, nor do they face sanctions
for their inadvertent or willful failure to release all evidence or required information to
prosecutors.”

90
Id.

91
Heath, 642 S.W.3d at 597 n. 3.
Heath – 31

soon as practicable” by providing verification that everything that is required

to be disclosed has been turned over from law enforcement.

The most natural use of the word “state” in the statute is as a reference

to the State of Texas as a party to the litigation. The word “state” is only

textually limited to “counsel for the state” when the Legislature intended to

refer to attorneys representing the State. Thus, we agree with Appellee that

the deletion of the phrase “any of its agencies,” and its replacement with “any

person under contract with the State,” did not limit the State’s statutory

obligation—it merely removed surplusage. This interpretation of “state”

renders its meaning consistent throughout the statute and avoids rendering

the phrase “counsel for the state” meaningless. It is also consistent with the

purpose of the Michael Morton Act to broaden discovery for criminal

defendants.

Even if we were to conclude that “the state,” as utilized in Article

39.14(a), is ambiguous, the broader legislative objective, history, and

circumstances under which the Michael Morton Act was enacted all lend

themselves to our conclusion that “the state” still means the State of Texas. 92 91F

As we have already noted, the Michael Morton Act expanded the State’s

92
Watkins, 619 S.W.3d. at 273 (“When the language of the statute is ambiguous . . . we may
consider extra-textual factors in construing the statute . . . Extra-textual factors that we may
consider to resolve ambiguity include: (1) the object sought to be obtained by the Legislature;
(2) the circumstances under which the statute was enacted; (3) the legislative history; (4)
the common law or former statutory provisions, including laws on the same or similar
subjects; (5) the consequences of a particular construction; (6) the administrative
construction of the statute; and (7) the title or caption, preamble, and any emergency
provision.”) (internal citations omitted).
Heath – 32

obligation to disclose discovery to the defense, increased the number of State

entities whose records are subject to discovery, and mandated that the

disclosure of discovery happen quickly. 93 This makes sense considering the
92F

Act was passed in response to the wrongful conviction of Michael Morton, who

spent twenty-five years in prison for a crime he did not commit because

material exculpatory evidence had been withheld by the prosecutor. 94 The 93F

Michael Morton Act was enacted in part to preserve a criminal defendant’s

rights under Brady v. Maryland. 95 Thus, it would contravene the Legislature’s
94F

intent in passing the Act to interpret “the state” under Article 39.14 to mean

only evidence in the possession of a particular prosecutor as being subject to

disclosure. It would also undermine the statute’s purpose that “[e]very

defendant should have access to all the evidence relevant to his guilt or

innocence, with adequate time to examine it.” 96 95F The State’s suggested

statutory interpretation would ultimately limit the scope of criminal discovery

despite the obvious legislative intent to broaden it. Given our determination

93
Id. at 278.

94
Id. at 274-75 (citing Hearing on S.B. 1611 Before the S. Comm. on Criminal Justice, 83rd
Leg., R.S. (2013)).

95
Id. at 289 (citing Sen. Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1611, 83rd Leg.,
R.S. (2013)).

96
Senate Research Center, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (July 26, 2013)
(Rodney Ellis et al. statement of intent). During the third reading of 2013 SB 1611, Senator
Ellis, the primary authority of the Michael Morton Act, stated the Act: “removes barriers to
discovery processes in Texas to ensure a more relevant evidence procedure comes forward
and evidence that is relevant will be disclosed; it has to be disclosed.” S.J. of Tex., 83rd Leg.,
R.S. 818, 819 (2013).
Heath – 33

that Article 39.14(a)’s reference to “the state” refers to the State of Texas,

we must next consider the meaning of the statute’s phrase “as soon as

practicable.”

“As Soon As Practicable” by its Plain Terms
Has No Knowledge Requirement

The State’s statutory interpretation of the phrase “as soon as

practicable” starts from the premise that the prosecution only violates Article

39.14 when it knowingly withholds evidence in an act of bad faith. This is

unsurprising given that, prior to the Michael Morton Act’s passage, this Court

repeatedly held that there was no general right of discovery in Texas. 97 Given 96F

this legal landscape, the defense was required, as a practical matter, to

characterize a prosecutor’s failure to provide discovery as a violation of the

prosecutions’ duty to produce exculpatory evidence under Brady v.

Maryland, 98 as some form of prosecutorial misconduct for violating a trial
97F

court’s order for discovery, 99 or as an ethical violation under the Rules of
98F

Professional Misconduct. 100 99F

97
See Quinones, 592 S.W.2d at 941, abrogated on other grounds Ehrke v. State, 459 S.W.3d
606 (Tex. Crim. App. 2015).

98
Brady v. Maryland, 373 U.S. 83, 87 (1963).

99
See State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004) (“trial court’s order
excluding the evidence was based on its ultimate finding that the State acted willfully in
violating the discovery order”).

100
See Francis v. State, 428 S.W.3d 850, 854-55 (Tex. Crim. App. 2014) (the exclusion of
evidence willfully withheld under a discovery order “is in the nature of a court-fashioned
sanction for prosecutorial misconduct”); Tex. Disciplinary Rules Prof’l Conduct 3.09(d)
(prosecutor in a criminal case shall “make timely disclosure of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense").
Heath – 34

But all of these arguments inherently contain a scienter requirement.

Prosecutorial misconduct claims require a bad faith violation of a trial court’s

order. Even the special ethical duties of a prosecutor require a showing that

the prosecutor withheld evidence he or she knew about. 101 A Brady violation
100F

occurs when the State suppresses favorable evidence whether willfully or

inadvertently, but the Brady obligation “does not require prosecuting

authorities to disclose exculpatory information to defendants that the State

does not have in its possession and that is not known to exist.” 102 That such 101F

knowing conduct might violate a prosecutor’s constitutional or ethical duties

as well as the statute does not mean that the same standard applies for a

mere statutory violation. And this case does not turn on a constitutional or

ethical challenge to the prosecutor’s behavior. Indeed, it is fair to observe

that under the facts of this case, the prosecutor did not violate her

constitutional or ethical duties under Brady or the disciplinary rules, nor did

she intentionally violate a trial court’s order. 103 That is not the issue in this
102F

case.

101
Tex. Disciplinary Rules Prof’l Conduct 3.09(d) (“[t]he prosecutor in a criminal case shall .
. . make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense”).

102
Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); Brady, 373 U.S. at 87. For
purposes of Brady, “[e]ven if the prosecutor was not personally aware of the audio recording,
the State is not relieved of its duty to disclose because ‘the State’ includes, in addition to the
prosecutor, other lawyers and employees in his office and members of law enforcement
connected to the investigation and prosecution of the case.” Ex parte Reed, 271 S.W.3d 609,
726 (Tex. Crim. App. 2008).

103
We specifically reject the court of appeals’ holding that the prosecutor’s mere failure to
inquire about discoverable items amounts to bad faith. While the failure to make an inquiry
Heath – 35

In this case, we are merely asked to consider whether the prosecutor

failed to comply with the terms of a statute. And, by its plain text, Article

39.14 does not contain a knowledge requirement similar to the types of claims

discussed above. Once a timely request is received from the defense, the

State’s obligation to produce evidence that is “in the possession, custody, or

control of the state or any person under contract with the state,” excludes

only the work product of counsel for the state and their investigators, and

otherwise privileged or non-material items. 104 The statute’s requirement that
103F

discovery be provided “as soon as practicable” is likewise triggered by the

receipt of a timely request by the defense and is without any knowledge

modifier or requirement.

The legislature is certainly capable of limiting an obligation imposed on

counsel for the State with a knowledge requirement if it so desires. For

example, Article 2.03 of the Texas Code of Criminal Procedure imposes a duty

upon prosecutors to present by information, or bring to the notice of the grand

jury, any officer for neglect or failure of duty or violation of law. But that

statute, by its plain language, carefully limits that duty to whenever such

violations come within the prosecutor’s knowledge:

It shall be the duty of the attorney representing the State to
present by information to the court having jurisdiction, any officer
for neglect or failure of any duty enjoined upon such officer, when
such neglect or failure can be presented by information, whenever

can undercut a claim that the prosecutor turned over evidence “as soon as practicable,” we
need not make a determination as to whether the prosecutor’s conduct amounted to bad faith.

104
Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 36

it shall come to the knowledge of said attorney that there has been
a neglect or failure of duty upon the part of said officer; and he
shall bring to the notice of the grand jury any act of violation of
law or neglect or failure of duty upon the part of any officer, when
such violation, neglect or failure is not presented by information,
and whenever the same may come to his knowledge. 105 104F

Article 39.14(a), on the other hand, contains no such knowledge requirement

or limitation. Accordingly, under the plain language of the statute, “the state”

is under an obligation to produce material, non-privileged discovery that is “in

the possession, custody, or control of the state” and must do so “as soon as

practicable” upon receipt of the defense’s timely request. The State maintains

that by promptly disclosing the recording “as soon as [the prosecutor] learned

of the 911 call,” the State complied with its duty to disclose “as soon as

practicable.” But, as the State concedes, “as soon as practicable” is a

timeliness requirement.

Because “practicable” in this context is not specifically defined, we

must look to the accepted common use of the term’s meaning. 106 105F By its

common meaning, “practicable” is best understood mean “reasonably capable

of being accomplished.” 107 106F Thus, as soon as it is capable of being

accomplished or feasible, discovery must be produced. To the extent that the

105
Tex. Code Crim. Proc. Ann. art. 2.03(a) (emphasis added).

106
Tex. Code Crim. Proc. Ann. art. 3.01 (“All words, phrases and terms used in this Code are
to be taken and understood in their usual acceptation in common language, except where
specially defined).

107
Black’s Law Dictionary, 1418 (11th Ed. 2019); see also Merriam-Webster’s Collegiate
Dictionary 974 (11th Ed. 2020) (defining “practicable” as “capable of being put into practice
or of being done or accomplished: feasible”); see Clinton, 354 S.W.3d at 800.
Heath – 37

definition of “practicable” includes a “reasonableness” requirement, we

interpret that to be a requirement of reasonable diligence on the part of the

prosecutor to discover what items the State has in its possession that it

intends to introduce at trial. 108 While the prosecution may not be reasonably
107F

capable of producing evidence that has been lost or intentionally hidden by

law enforcement, those are not the circumstances of this case. If a simple

request to law enforcement for an item of discovery can result in its disclosure,

as it did in this case, then disclosure is reasonably capable of being

accomplished. 109 108F Article 39.14(a) makes clear that offense reports and

witness statements obtained from law enforcement officers are subject to

disclosure even though those items are in the possession of law enforcement.

This understanding of “practicable” also comports with our recognition

that the broader, mandatory discovery obligation under the Michael Morton

Act must be “complied with quickly.” 110 If we were to interpret “as soon as
109F

practicable” to mean whenever discovery comes to the prosecutor’s

knowledge, then prosecutors could delay complying with Article 39.14 by

simply refusing to ask law enforcement to turn over evidence in its possession.

Here, the prosecutor reasonably could have produced the recording of the 911

108
See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).

109
A statement from a law enforcement agency acknowledging that everything required to
be disclosed under Article 39.14 had been disclosed to the prosecutor, as is required now by
Article 2.1397, might suggest that any item not disclosed was not reasonably capable of being
disclosed.

110
Watkins, 619 S.W.3d at 278.
Heath – 38

call in response to the defense’s timely request for discovery sooner than she

did. Because the recording was reasonably capable of being discovered by

the state, the prosecutor did not disclose this evidence to the defense “as soon

as practicable.”

We agree with the State that Article 39.14 imposes discovery

obligations, and those obligations are carried out by prosecutors as

representatives of the State of Texas in criminal actions. 111 But the State’s
110F

interpretation of the statute would then remove any duty on the part of the

prosecution to seek out evidence to comply with Article 39.14 as well as any

duty on the part of law enforcement to turn evidence over to the prosecution

for disclosure. Under the State’s interpretation of the phrase “as soon as

practicable” and the reference to items in possession of “the state,”

prosecutors would be under no obligation to produce anything because they

could always claim that the evidence was unknown and currently unavailable

to the prosecutor, even if it were in the possession of a law enforcement

agency and readily available upon request. Given that we have already

determined that Article 39.14 includes items in the possession of law

enforcement, it follows that the State has an obligation to exercise reasonable

diligence to ascertain what discoverable evidence is at its disposal. In short,

as Chief Justice Gray in the court of appeals observed, “once a discovery item

111
Tex. Code Crim. Proc. Ann. art. 2.01 (“each district attorney shall represent the State in
all criminal cases in the district courts of his district”).
Heath – 39

is requested, the State now has an affirmative duty to search for the item and

produce it to the defendant in a timely manner.” 112 111F

Here, interpreting “the state” under Article 39.14(a) as referring only to

the prosecutor would render the statute’s reference to “counsel for the state”

meaningless, create conflict between subjections (a) and (h), and would

completely undermine the broader legislative intent behind the statute.

Likewise, interpreting “as soon as practicable” to contain a knowledge

requirement on the part of the prosecutor contravenes the plain text of the

statute and would require us to ignore the context in which that phrase

appears. Consequently, we hold that under Article 39.14, “the state” means

the State of Texas, which includes law enforcement agencies, and imposes a

duty upon prosecutors as representatives of “the state” to disclose

discoverable evidence “as soon as practicable,” meaning as soon as the State

is reasonably capable of doing so, upon receiving a timely request from the

defense.

Was Article 39.14(a) Violated?

It was. We hold that the trial court did not err to determine that the

State violated Article 39.14(a) when it disclosed the 911 call fourteen months

after Appellee’s timely request. The trial court found that law enforcement

was in possession of the 911 call since the date of the alleged offense in

November of 2016. A timely request for discovery was made by defense

112
Heath, 642 S.W.3d at 597.
Heath – 40

counsel on March 20, 2017. There is no dispute that the recording of the 911

call is material evidence that is required to be disclosed under Article 39.14.

The recording of the 911 call was disclosed and produced to the defense on

May 23, 2018, just days before trial was to begin on May 29—the fourth trial

setting in this case. The trial court also found that the recording of the 911

call was in the possession of law enforcement, unbeknownst to the prosecutor,

until on or about May 18, 2018. The record supports these findings.

The trial court concluded that the State violated Article 39.14(a)

because the State’s duty to disclose extends to discoverable items that are in

the possession, custody, and control of “the state,” which includes items in

the possession of law enforcement agencies. The trial court also concluded

that the prosecutor had a specific duty to ascertain what discoverable evidence

was available and disclose it to the defense as soon as practicable. And,

finally, the trial court concluded that the recording of the 911 call was not

disclosed “as soon as practicable” given that law enforcement had possession

of the recording for eighteen months and the defense submitted a timely

request for discovery fourteen months prior to the fourth trial setting. Under

these facts, we hold the trial court did not abuse its discretion in determining

that the State had violated Article 39.14 by failing to disclose the 911 call as

soon as practicable after the defendant’s request for discovery.

Does a Trial Court have the Authority to Exclude Evidence for a
Violation of Article 39.14?
Heath – 41

Having held that the trial court did not err in concluding that the State’s

untimely disclosure of the 911 call violated Article 39.14(a), we must next

consider the trial court’s authority to exclude the evidence. The trial court

granted Appellee’s motion to exclude the 911 call at trial and the court of

appeals held that the trial court did not abuse its discretion in doing so. 113 112F

The court of appeals reasoned 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.’” 114 113F As explained below, we agree with the lower

court’s holding that the trial court did not abuse its discretion but we disagree

that the failure to inquire about the existence of discoverable evidence rises

to the level of “bad faith” on the part of the prosecutor. Instead, we hold that

the trial court had the inherent authority to fashion a remedy to control its

docket and was not required to find the State acted in bad faith in order to

exclude the evidence for a violation of Article 39.14.

The State argues that the trial court lacks authority to exclude evidence

for a discovery violation absent bad faith on behalf of the prosecution or

113
Heath, 642 S.W.3d at 597 (“In a situation where the prosecutor was set for trial and
presumably ready to proceed to trial without the evidence on three prior settings, the ruling
by the trial court excluding the evidence that was not previously produced, in this instance
the recording of the 9-1-1 call, is not an abuse of discretion. The trial court fashioned an
appropriate sanction for the State’s failure to timely produce the recording in response to the
discovery request.”).

114
Id.
Heath – 42

prejudice to the defendant. Appellee argues that trial courts have authority

under the common law or, alternatively, pursuant to their inherent authority

to exclude evidence that was willfully withheld from disclosure. Appellee

further argues that the record demonstrates a willful violation of the State’s

discovery obligation because the State announced ready for trial four times

over a period of many months before the call was produced. Appellee argues,

alternatively, that the determination of willfulness is at least within the zone

of reasonable disagreement. Thus, while the parties do not dispute that the

trial court has the authority to exclude evidence based on a violation of Article

39.14; they dispute, under what set of facts, a trial court may exercise that

authority. Ultimately, we disagree with the State that a trial court’s authority

is so limited.

A trial court’s decision to exclude evidence is reviewed under an abuse

of discretion standard meaning that its decision will not be overturned unless

it falls outsize of the zone of reasonable disagreement. 115 This is the standard
114F

we have historically applied to a trial court’s decision to exclude evidence for

discovery violations pre-Michael Morton Act. 116 It is also the standard applied
115F

when considering the admission or exclusion of evidence in other contexts. 117 116F

115
Francis, 428 S.W.3d at 855.

116
Id.; see also Oprean, 201 S.W.3d at 726.

117
See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (“A trial judge’s decision
on the admissibility of evidence is reviewed under an abuse of discretion standard and will
not be reversed if it is within the zone of reasonable disagreement.”); Russeau v. State, 291
S.W.3d 426, 438 (Tex. Crim. App. 2009) (“A trial court’s ruling admitting evidence will not be
reversed on appeal absent a clear abuse of discretion.”).
Heath – 43

We conclude it is the standard that should apply to a trial court’s decision to

exclude evidence for a discovery violation today.

Article 39.14 has never included a provision concerning the remedy for

a discovery violation, but this Court recognized a trial court’s authority to

exclude inculpatory evidence withheld, even inadvertently, in violation of a

discovery order in Hollowell v. State. 118 In that case, the defense argued that
117F

due process was violated by the introduction of palmprint evidence connecting

the defendant to the scene of a burglary, which had not been disclosed pretrial

despite a trial court order for discovery. 119 This Court explained “[t]he State’s
118F

contention that it was unaware of the existence of the print until after the trial

was in progress is untenable.” 120 119F The Court noted the palmprint was real

evidence obtained by the investigating officer, which clearly fell within the

discovery motion that had been granted. 121 We specifically recognized that
120F

“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.” 122 And we went on to explain that the prosecutor had an obligation
121F

to know what evidence was at his disposal, citing the discovery motion’s

118
Hollowell, 571 S.W.2d at 180.

119
Id.

120
Id.

121
Id.

122
Id.
Heath – 44

specific reference to evidence in the possession of law enforcement as

additional support for the conclusion that the prosecutor had a specific duty

to ascertain what evidence within the terms of the granted motion was held

by law enforcement. 123 Though we ultimately held that the admission of the
122F

palmprint evidence was harmless in light of other evidence presented at trial,

we nevertheless held that the State’s failure to ascertain what evidence it had

at its disposal amounted to a willful violation of the trial court’s discovery

order. 124 123F

Decades later, we continued to cite Hollowell for the proposition that

evidence willfully withheld should be excluded but the application of the

willfulness standard misinterpreted our holding in Hollowell. Later cases

developed to essentially require a showing of “bad faith” on the part of the

prosecution due to a specific intent to knowingly violate a discovery order or

frustrate the defense. In Francis v. State, for example, we explained:

Because exclusion of evidence in this context is in the nature of a
court-fashioned sanction for prosecutorial misconduct, whether
the trial court should exclude evidence on this basis has been
made to hinge on ‘whether the prosecutor acted with the specific
intent to willfully disobey the discovery order.’ Extreme negligence
or even recklessness on the prosecutor’s part in failing to comply
with a discovery order will not, standing alone, justify the sanction
of excluding relevant evidence. 125
124F

123
Id.

124
Id.

125
Francis, 428 S.W.3d at 855.
Heath – 45

The defendant in Francis was charged with aggravated robbery and the

indictment alleged that he used a deadly weapon, namely a knife. 126 A pretrial125F

discovery order directed the State to provide the defense with an opportunity

to inspect all physical objects to be introduced as evidence and all weapons

seized or acquired as part of the investigation. 127 126F At trial, the defense

objected to the introduction of a machete at trial, arguing that it had not been

previously made aware of the weapon’s existence. 128 The prosecutor claimed
127F

that although the machete was in her exclusive possession prior to trial, she

believed the defense was aware of its existence. 129 The prosecutor denied a
128F

conscious objective to thwart the discovery order. 130 The trial court declined
129F

to exclude the weapon and, in a splintered decision, the court of appeals

concluded that the trial court did not err because it could have reasonably

concluded that the prosecutor did not willfully violate the discovery order. 131 130F

We concluded that, while the trial court could have rationally concluded that

the prosecutor’s conduct constituted a calculated effort to frustrate the known

dictates of the pretrial discovery order, the trial court was not obligated to

126
Id. at 852.

127
Id.

128
Id.

129
Id. at 856-57.

130
Id. at 856.

131
Id. at 854.
Heath – 46

draw that conclusion. 132 We reasoned that the trial court was free to credit
131F

the prosecutor’s explanation for the lack of disclosure and, because the facts

did not ineluctably establish willfulness, we held that the trial court did not

abuse its discretion. 133 132F

On the other hand, in Oprean v. State, we found the State’s failure to

turn over a DWI videotape in discovery was willful and thus mandated the

exclusion of the evidence. 134 133F In that case, the State failed to disclose a

videotape prior to trial, which depicted the defendant’s prior DWI offense that

it intended to introduce at punishment in violation of the discovery order. 135 134F

The trial court admitted the tape over the defense’s objection. 136 We held 135F

that the prosecutor’s conduct demonstrated a calculated effort to frustrate the

defense considering the prosecutor’s statements and actions. 137 136F First, we

pointed out that the prosecutor told defense counsel that she only intended to

introduce the previous judgments at punishment. We noted the absence of

any suggestion that the prosecutor only subsequently learned of the video’s

existence. Also, although the prosecutor argued that the discovery order

132
Id. at 856.

133
Id. at 858-59.

134
Oprean, 201 S.W.3d at 728.

135
Id. at 725.

136
Id. at 725.

137
Id. at 728.
Heath – 47

contained no Article 37.07 138 charge and the defense made no such request,
137F

we reasoned it was clear that she was aware of the discovery order which

unambiguously required the State to disclose the tape before trial. 139 We held
138F

that the trial court abused its discretion in admitting the videotape over

defense’s objection. 140 139F

In State v. LaRue, we also considered a trial court’s authority to impose

sanctions for the State’s failure to comply with a discovery order. 141 In that 140F

case, the State failed to timely disclose, pursuant to a discovery order and

repeated requests from the defense, DNA evidence which the trial court

excluded as a result of the State’s noncompliance. 142 The trial court found
141F

that the State’s failure to timely provide the court-ordered discovery exceeded

negligent conduct and was, in fact, willful. 143 142F The court of appeals held that

the trial court erred to exclude the evidence because the record did not

support a finding of intentional disobedience of the trial court’s discovery order

138
Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (“On timely request of the defendant, notice
of intent to introduce evidence under this article shall be given in the same manner required
by Rule 404(b), Texas Rules of Evidence.”).

139
Oprean, 201 S.W.3d at 727-28 (“Because the prosecutor knew about the discovery order
and chose to invoke Article 37.07 after counsel called her attention to the order, she made a
conscious decision to violate the plain directive of the discovery order.”).

140
Id. at 728.

141
State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004).

142
Id. at 96.

143
Id.
Heath – 48

and did not reflect a willful violation of that order. 144 We affirmed the court
143F

of appeals’ judgment, reasoning that, though the prosecutor failed to comply

with the discovery order—which even he described as ‘grievous error’—there

was no evidence showing that he acted with the specific purpose of disobeying

the court’s discovery order. 145 144F While the prosecutor’s conduct itself was

“willful,” in that his actions were voluntary, we found no evidence that, “by

his choice, he intended to violate the order or harm the defense.” 146 We held
145F

that the trial court erred in excluding the evidence, but expressed no opinion

as to what lesser sanction should have been imposed given that the

prosecutor’s conduct was “of a less culpable nature.” 147 146F

Our prior cases analyzed the remedy for a statutory discovery violation

as a sanction for the violation of a court order. This makes sense given that

prior to the Michael Morton Act, there was no general right to discovery and

Article 39.14 required a showing of good cause and the entry of a trial court

order for discovery. However, some of our case law appears to have

misinterpreted Hollowell’s standard of willfulness to require something akin to

intentionally acting in bad faith. Furthermore, our prior cases focused on

exclusion as a remedy in the context of bad faith because those were the

144
Id. at 96-97.

145
Id. at 99.

146
Id. at 97.

147
Id. at 100 (noting neither party presented argument on the issue).
Heath – 49

arguments raised, not because the trial court’s inherent authority is so

limited. 148147F

Indeed, the approach to discovery in civil cases suggests trial courts

possess much broader inherent authority to fashion a remedy for a discovery

violation. Unlike Article 39.14, the Civil Rules of Procedure contain provisions

for both failing to comply with an order or request for discovery and failing to

make a discovery response, 149 including a required disclosure, in a timely
148F

matter. 150 Rule 215.2 provides a non-exhaustive list of possible sanctions by
149F

a court for the failure to comply with proper discovery requests or orders that

permits a trial court to “make such orders in regard to the failure as are just,”

and includes, “among others” disallowing further discovery, charging

discovery expenses, prohibiting matters in evidence, prohibiting the

disobedient party from making designated claims or defenses, and even taking

as established facts regarding the matter for which discovery was ordered. 151 150F

Likewise, the civil rules provide that:

148
Tex. Gov’t Code Ann. § 21.001(a) & (b) (A court has all powers necessary for the exercise
of its jurisdiction and the enforcement of its lawful orders, including authority to issue the
writs and orders necessary or proper in aid of its jurisdiction. A court shall require that
proceedings be conducted . . . in an orderly and expeditious manner and control the
proceedings so that justice is done”); Dietz v. Bouldin, 579 U.S. 40, 45 (2016) (recognizing
district courts possess inherent powers “governed not by rule of statute but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” (citing Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962)).

149
Tex. R. Civ. P. 215.2 (Failure to Comply with Order or with Discovery Request).

150
Tex. R. Civ. P. 193.6 (Failing to Timely Respond – Effect on Trial).

151
Tex. R. Civ. P. 215.2(b) (Sanctions by Court in Which Action is Pending).
Heath – 50

A party who fails to make, amend, or supplement a discovery
response, including a required disclosure, in a timely manner may
not introduce in evidence the material or information that was not
timely disclosed . . . unless the court finds that (1) there was good
cause of the failure to timely make, amend, or supplement the
discovery response; or (2) the failure to timely make, amend, or
supplement the discovery response will not unfairly surprise or
unfairly prejudice the other parties. 152 151F

Notably, under the civil rules exclusion of evidence that was not timely

disclosed is the default. The civil rules place a burden upon the party seeking

to introduce the evidence to explain or justify the failure to comply with

discovery. 153 And while the rule allows for an exception to exclusion based
152F

upon a showing of “good cause” by the party who committed the discovery

violation, 154 inadvertent failure to discover the existence of evidence does not
153F

satisfy that burden. 155 Further, even if that burden is met, the rule authorizes
154F

a trial court to grant a continuance or temporarily postpone trial. 156 The civil155F

rules concerning discovery are court made rules and implicit in the

promulgation of these rules is the recognition that courts have inherent

authority to fashion appropriate remedies when addressing discovery

152
Tex. R. Civ. P. 193.6(a) (Exclusion of evidence and exceptions).

153
Tex. R. Civ. P. 193.6(b).

Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992) (“The good cause
154

exception permits a trial court to excuse a failure to comply with discovery in difficult or
impossible circumstances.”).

155
Id. at 915 (“If inadvertence of counsel, by itself, were good cause, the exception would
swallow up the rule, for there would be few cases in which counsel would admit to making a
deliberate decision not to comply with the discovery rules.”).

156
Tex. R. Civ. P. 193.6(c).
Heath – 51

violations. The civil rules’ approach demonstrates that a trial court’s inherent

authority to fashion an appropriate remedy for a discovery violation is not

limited to constitutional or ethical violations or bad faith defiance of a court

order. To the extent that a violation of discovery must be willful, the failure

to exercise reasonable diligence in ascertaining whether discoverable evidence

exists satisfies that requirement even if it would not rise to the level of bad

faith necessary to establish a constitutional or ethical violation. 157 156F

We agree with the court of appeals’ conclusion that the old concept of

‘bad faith’ no longer applied to Article 39.14 given the “substantive change to

the process for the disclosure of requested items.” 158 157F As the lower court

explained, “[i]t is no longer sufficient for the State to wait until it gets ready,

or when the prosecutor decides to prepare the case for trial, to then search

out and produce properly requested discovery.” 159 158F Article 39.14(a) now

contains a timeliness requirement and a prosecutor may inadvertently violate

the statute by failing to exercise reasonable diligence in seeking out

discoverable items. 160 159F

157
See Hollowell, 571 S.W.2d at 180 (discovery order “placed a specific duty on the prosecutor
to ascertain what evidence within the terms of the granted motion was held by the police and
to make such evidence available to the defense under the terms of the order”).

158
Heath, 642 S.W.3d at 597.

159
Id.

160
Id.
Heath – 52

The State maintains that the appropriate remedy for an untimely

disclosure is a continuance to allow defense counsel more time to review the

recently disclosed evidence. 161 We acknowledge that a continuance would be
160F

a much more restrained solution. But that’s not the question before us. The

question before us is whether the trial court had the authority to impose the

remedy it did. That the trial court could have imposed a lesser remedy,

assuming the formal requirements for a continuance were met, does not mean

the trial court abused its discretion by excluding the evidence in this case. 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. 162 161F

We agree with the court of appeals that the trial court was within its discretion

to fashion a remedy it deemed appropriate.

Next, the State argues that the defense’s rejection of a continuance does

not establish prejudice, and, in fact, it may establish its absence. But as we

explained above, regardless of the defendant’s rejection of the State’s oral

motion for continuance, the state’s failure to ascertain the evidence it intended

to introduce at trial in a timely fashion was enough of a showing of willfulness

161
If the State desired a continuance, however, it was required to file a written motion. Tex.
Code Crim. Proc. Ann. art. 29.03 (“A criminal action may be continued on the written motion
of the State of the defendant, upon sufficient cause shown; which cause shall be fully set
forth in the motion.”); Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984) (holding
an oral motion for continuance properly overruled because all motion for continuance must
be in writing and sworn to).

162
Oprean, 201 S.W.3d at 726.
Heath – 53

to justify the trial court’s remedy of exclusion even if it did not rise to the level

of a constitutional or ethical violation. As the trial court noted, this case was

on its fourth trial setting and the State had announced ready for trial at three

previous trial settings. Though it might have been better practice for the trial

court to grant even a short recess, assuming the necessary procedural

requirements were met, the trial court was within its authority to reject the

State’s argument for a continuance.

Based upon the record in this case, we conclude that the trial court did

not abuse its discretion in excluding evidence of the 911 call due to the State’s

untimely disclosure in violation of Article 39.14. Based on the prosecutor’s

failure to seek out evidence at the State’s disposal, the length of time between

the discovery request and disclosure – 14 months, and the State’s three

previous announcements of ready for trial without the evidence at hand, the

trial court could have reasonably determined that the appropriate remedy for

the State’s statutory discovery violation was the exclusion of the 911 call.

While exclusion was not the only remedy available to the trial court, it was not

a remedy that was beyond the trial court’s discretion to impose.

Conclusion

Under Article 39.14, "the state” means the State of Texas, not an

individual prosecutor or a district attorney’s office. While the statutorily

imposed discovery obligations fall on the prosecutor as the State of Texas’

representative in criminal cases, the obligation to produce material evidence
Heath – 54

extends to evidence that is in the possession of law enforcement agencies. As

such, the prosecution may inadvertently violate Article 39.14 by failing to

disclose evidence that is in the possession of law enforcement because it has

an obligation to ascertain what evidence is available to it, as well as an

obligation to disclose that evidence to the defense as soon as practicable upon

timely request. Here, the State violated its duty under Article 39.14 by failing

to timely disclose evidence of a 911 call made by the complainant’s mother

on the date of the alleged offense. Though the prosecutor was unaware of

the recording when Appellee made his discovery request nearly fourteen

months prior and on the three separate occasions when the State announced

it was ready to proceed to trial in this case, the State was obligated to find

out what evidence was available to it. Under these circumstances, the trial

court acted within its discretion to exclude the 911 call based on a violation of

the discovery statute. Accordingly, we affirm the judgment of the court of

appeals.

Delivered: June 12, 2024

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