Jonathan David Benami v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00185-CR

JONATHAN DAVID BENAMI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1835799

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
Concurring Opinion by Justice Rambin
MEMORANDUM OPINION

Jonathan David Benami appeals his conviction for murder, a first-degree felony, by a

Tarrant County jury.1 See TEX. PENAL CODE. ANN. § 19.02(c) (Supp.). At issue is the trial

court’s ruling that Benami failed to properly notify the State of Benami’s expert witness as

required by the Texas Code of Criminal Procedure. The trial court precluded Benami from

presenting testimony from that witness.

We conclude that Benami did not preserve his argument that the trial court misapplied

Article 39.14(b) of the Texas Code of Criminal Procedure2 and that the trial court did not abuse

its discretion in excluding testimony from Benami’s proffered expert under the same article. We

affirm the trial court’s judgment.

I. Background

Law enforcement arrested Benami for a murder that occurred on September 29, 2021. In

November 2022, the trial court found him to be incompetent to stand trial. Benami remained

incompetent for the rest of 2022 and much of 2023. In February 2024, the trial court found him

competent and proceeded with his trial in August 2024.

At a pretrial hearing the morning before voir dire, Benami acknowledged he had not

designated an expert witness whose testimony he wanted to proffer at trial. See TEX. CODE

CRIM. PROC. ANN. art. 39.14(b). Benami asked for a continuance so he could comply with

1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are not aware
of any precedent from that court that is inconsistent with our opinion. See TEX. R. APP. P. 41.3.
2
See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (Supp.).
2
Article 39.14(b) and to do further investigation and preparation for the presentation of mitigation

evidence at trial. The State objected that Benami did not comply with Article 39.14(b) and noted

(1) that one of Benami’s attorneys represented him in another criminal case that had been

resolved just days before the murder in this case, (2) that it was aware of at least two interviews

with Benami by proffered witness, Dr. Emily Fallis, (3) that the case had been specially set, and

(4) that almost three years had passed since the murder. Benami provided no notice to the State

of his proposed expert witness, and the trial court excluded her from testifying.3

The jury convicted Benami of murder and recommended a sentence of seventy years’

incarceration. The trial court sentenced him accordingly, and this appeal followed.

II. Article 39.14(b) Argument Not Preserved

First, Benami argues the trial court misapplied the notice requirement of Article 39.14(b).

However, Benami did not make his argument to the trial court. “Preservation of error is a

systemic requirement that a first-level appellate court should ordinarily review on its own

motion.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quoting Jones v. State,

942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)). It is “incumbent upon the Court itself to take up

error preservation as a threshold issue.” Id. That said, “we will not be hyper-technical in our

examination of whether error was preserved.” Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim.

App. 2007). At the pre-trial hearing, Benami asked the trial court for a continuance because he

had not designated Fallis as an expert witness for trial. On appeal, Benami claims the trial court

3
The trial court said that Benami had failed to comply with “the Rules of Evidence,” but from the context it was
clear the trial court was referring to Article 39.14(b) of the Texas Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 39.14(b).
3
did not correctly interpret and apply Article 39.14(b). See TEX. CODE CRIM. PROC. ANN. art.

39.14(b).

At issue is the first sentence of Article 39.14(b):

On a party’s request made not later than the 30th day before the date that jury
selection in the trial is scheduled to begin or, in a trial without a jury, the
presentation of evidence is scheduled to begin, the party receiving the request
shall disclose to the requesting party the name and address of each person the
disclosing party may use at trial to present evidence under Rules 702, 703, and
705, Texas Rules of Evidence.

TEX. CODE CRIM. PROC. ANN. art. 39.14(b). Benami argues that “[o]n a party’s request made not

later than the 30th day before the date that jury selection in the trial is to begin” should be read to

mean “the first-time [sic] jury selection is scheduled to begin.” So, here, jury selection was first

set for April 26, 2024, but the trial court rescheduled the trial.4 The State requested an expert

witness notice on May 10, 2024, and the parties selected a jury on August 26, 2024. Thus,

argues Benami, the State’s request was not timely filed (i.e., not thirty days before jury selection

was first scheduled to begin) and Benami had no obligation to give notice of his expert witness at

all.

But Benami never made that argument to the trial court. Where an appellate argument

does not comport with a trial objection, the appellant has not preserved the matter for our review.

See TEX. R. APP. P. 33.1; Auld v. State, 652 S.W.3d 95, 109 (Tex. Crim. App. 2022). We

overrule Benami’s first point of error.

4
The State requested and received a continuance because it was awaiting DNA test results.
4
III. Trial Court Did Not Abuse its Discretion Excluding Benami’s Expert Witness

A. Standard of Review

In his second point of error, Benami argues that the trial court abused its discretion in

prohibiting Fallis from testifying at trial. “We review a trial court’s decision on whether to allow

an expert witness to testify on an abuse of discretion standard.” Johnson v. State, 233 S.W.3d

109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Chakravarthy v. State, 516 S.W.3d

116, 135–36 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (quoting Johnson, 233

S.W.3d at 114); see Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000). “If the trial

judge allows a witness to testify who does not appear on the [offering party’s] witness list, we

consider whether the [offering party]’s actions constitute ‘bad faith’ and whether the defendant

could have reasonably anticipated the witness’[s] testimony.” Martinez v. State, 867 S.W.2d 30,

39 (Tex. Crim. App. 1993).

When reviewing a claim such as this, a number of factors surrounding the trial
court’s decision (and, hence, whether it was an abuse of discretion) must be
considered. “Among the factors which will be considered by this Court in
determining . . . abuse of discretion is a showing of bad faith on the part of the
prosecutor in failing to disclose ahead of time the name of the witness.” “Another
such factor is whether the defendant can reasonably anticipate that the witness
would testify although his or her name was not included within the witness list.”

Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992) (citation omitted) (quoting

Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981)).

5
1. Benami’s History of Incompetency Before Trial5

Benami’s case was pending less than three years. The murder occurred on September 29,

2021, and trial began the last week of August 2024. Attorney Scott Palmer filed a notice of

representation on October 7, 2021. The first indication of mental illness appears in the record on

July 28, 2022, in the form of an invoice for a psychological evaluation of Benami submitted by

Emily Fallis, Ph.D., of “Balance Forensic & General Psychological Services, Inc.” On

August 17, 2022, the trial court signed an order for the examination of Benami for any signs of

mental illness or intellectual disability. See TEX. CODE CRIM. PROC. ANN. art. 16.22 (Supp.). On

November 9, 2022, the trial court issued a warrant for Benami with the notation “[h]old

[p]ending emergency competency exam.” The following day the court ordered a competency

examination to be performed by Dr. Jim Womack. Womack submitted an invoice dated

November 14, 2022, on Balance Forensic & General Psychological Services, Inc., letterhead.

The invoices submitted by Womack and Fallis were on the same letterhead, included the same

case/client identification number, and both identified the examinee as Benami.

On November 15, 2022, based on Womack’s examination, the trial court found Benami

incompetent to stand trial. The trial court committed Benami to participate in the “Jail-Based

Competency Restoration Program” and then, on January 24, 2023, the trial court committed

Benami to a mental hospital. The trial court ordered another competency examination on April

28, 2023, this time to be performed by Dr. William Barry Norman, who submitted an invoice

dated May 4, 2023. Like the invoices of Womack and Fallis, Norman’s invoice identified

5
Benami intended to offer Fallis’s testimony about his state of mental health and history of his mental illness as
mitigation testimony at punishment.
6
Benami as the examinee and used the same case/client identification number. By July 31, 2023,

Benami apparently had been released from commitment, as he evidenced participation in a status

or plea conference with his signature on a court document. On September 29, 2023, the trial

court entered another order for examination for mental illness or intellectual disability, again

ordering Benami participate in an interview at My Health My Resources (MHMR) of Tarrant

County. On that same date, the trial court entered yet another order for a competency

examination. Norman submitted another invoice on October 29, 2023. On November 21, 2023,

the trial court again ordered that Benami be transferred to a mental hospital.

The trial court signed a final order for a competency examination on February 6, 2024, to

be conducted by Norman, and on February 20, 2024, the trial court found Benami competent to

stand trial. The case was set for trial in April 2024. As previously noted, on April 26, 2024, the

State asked for and received a continuance because it was awaiting DNA test results. The parties

tried the case from August 26, 2024, through September 4, 2024. In a hearing after the defense

rested, the State withdrew its expert, Dr. Antoinnette McGarrahan, and did not present her for

testimony.

B. Benami Did Not Comply with Article 39.14(b)

Benami did not comply with Article 39.14(b)’s requirement that, on the request by the

opposing party, a party designate the expert witnesses it plans to present at trial.6 On August 26,

2024, the morning of trial, Benami candidly acknowledged his failure to comply with Article

6
“On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to
begin . . . the party receiving the request shall disclose to the requesting party the name and address of each person
the disclosing party may use at trial . . . .” TEX. CODE CRIM. PROC. ANN. art. 39.14(b).
7
39.14(b).7 Benami asked for a continuance to properly designate Fallis as an expert witness.

Michael Levine, who appeared as co-counsel for Benami on Thursday, August 22, 2024, argued

for the continuance.8 Levine told the trial court that the defense team had spoken to Fallis the

day before, a Sunday, while Fallis was out of town. While one of the defense attorneys had met

with Benami’s father previously, the defense team had only met with Benami’s siblings at the

time of trial. According to Levine, the defense team “learned an incredible amount of

information that [went] to the heart of mitigation . . . in regards to [Benami’s] childhood, his

mental illness, beginning with early high school, work, [Child Protective Services (CPS)] records

from the time spent with his mother, who [was] deeply mentally ill, [and] ha[d] been

institutionalized before.” Levine told the trial court that the conversation with Fallis the previous

day was “the first time [they] discussed in detail what [Fallis] would testify to at trial,” and he

conceded that that was “inexcusable.”

Fallis was “essentially [Benami’s] entire mitigation . . . evidence,” but, according to

Levine, “Fallis [has not] spoken to anyone in [Benami’s] family and there’s not only no

explanation, but there’s no excuse.” Benami claimed, “[T]here’s just so much mitigation

7
Benami informed the trial court,

Your Honor, we’re going to try and prevail upon the Court -- if this was done properly, we need to
try to prevail upon the Court at the very least be able to introduce this evidence at
guilt/innocence. . . . But for sure, right now we don’t have the mitigation that we know is out there
that we could have gotten and we should have gotten. . . .
I can’t tell you why; I wasn’t on the case then. I can just tell you, Your Honor, that it’s
basic things that should have been done that were neglected.
8
Levine’s letter of representation was filed at 5:03 p.m. on August 22, 2024. He joined Benami’s defense team led
by Scott Palmer. In arguments, it was discussed that Palmer’s firm represented Benami in a Denton County assault
prosecution, which was pending when the instant murder occurred. However, Palmer told the trial court his firm
“never met Mr. Benami before the allegation that made the basis of this indictment.”
8
evidence out there that was neglected because people weren’t spoken to in time.” The State

listed “high school records, CPS records,” and chronological records from Benami’s bond

officer, as well as hospital and mental health records the State had acquired and provided to the

defense.

In opposing the motion for continuance, the State claimed that Benami had requested

funds in December 2021,9 giving Fallis ample time to interview Benami, and that Fallis had

conducted two interviews on or about May 22 and June 4, 2024. The State pointed out that the

case was three years old, the defense had had ample opportunity to investigate the case and have

Fallis examine Benami, and the trial had been specially set for that date. As for its discovery, the

State told the trial court it had “requested any and all mental health records for this defendant,”

including records from Tarrant County, Tarrant County MHMR, John Peter Smith department,

as well as work, school, and family records, which had been compiled by “bond officers that

have dealt with [Benami] over the last three years off and on” and included “thousands of pages

of records that predate [this] offense.” All of those documents had been furnished to the defense

in “the last few months [of trial], if not sooner.” The State also reminded the trial court that a

week prior to trial, at another pre-trial hearing (not contained in the appellate record) and before

Levine joined the defense team, the defense told the trial court “that they did not have any

concerns regarding [Benami’s] competency.”

9
The State advised, “The request for the Court to provide additional funds was requested back I believe it was
December of 2021.” There is no request for funds in the clerk’s record until July 29, 2022, when an invoice for an
examination by Fallis was submitted to the court.
9
1. The Offer of Proof

Benami presented an offer of proof from Fallis. She described Benami as “fit[ting] the

diagnosis of schizoaffective disorder.” Fallis continued by saying that that is “a serious mental

illness that includes both psychotic symptoms like hallucinations and delusions and disorganized

thinking . . . also . . . disorganized odd behavior.” Although there were some records to which

she had not been privy and she was unable to “interview[] . . . people related to the case,” Fallis

also opined that Benami “was mentally ill at the time of the murder and that his mental illness

significantly affected his behavior.” Benami’s attorney asked how long Fallis would need to

render an opinion “in regards to either insanity or . . . punishment mitigation” if she received

everything she needed that day, and Fallis answered, “Maybe another week.” That was on

August 29, 2024, the fourth day of trial. Fallis was asked to evaluate Benami for competency

and insanity, but she did not “conduct a full forensic examination” because she was not provided

sufficient records and had not been provided access to people “related to the case.”

According to Fallis, there was then “a long period where [she] didn’t even know what

was happening in the case[,] and [she] was contacted a couple years later and asked to look at his

competence to stand trial at that point.” She claimed not to have received any records or

documents to review, except from the defense, and Fallis stated that nobody provided family

information to her, such as any history of mental illness. Fallis developed her opinions despite

what appears to have been limited access to background information that she would usually be

provided before being asked for opinions or diagnoses.

10
Fallis said that she had met with Benami four times. As noted herein, there was an

invoice submitted from her suggesting an evaluation in July 2022. Fallis told the trial court that

she “was contacted in October of 2021” and that someone provided a court order to her in

November 2021. She “was asked to just generally . . . do an evaluation, looking at competence,

mental state at the time of offense, just, again, generally to evaluate Mr. Benami.” However,

after a couple more questions, Benami’s counsel reminded Fallis of the date of the murder and

asked, “[H]ow long after that do you think you saw him?” Fallis responded, “[T]he first time I

saw him was in December of 2021.” The parties seemed to agree that Fallis saw Benami in May

and June 2024, just before trial.

Fallis did find Benami incompetent to stand trial, at some point, based on “[h]is behavior

with [her] and also his behavior that was reported by the attorneys” who had “difficulty working

with [Benami].” Later, after another examination, she found Benami competent to stand trial.10

C. Analysis

First, we conclude the record does not show bad faith on Benami’s part in failing to

comply with Article 39.14(b)’s requirement. Benami’s failure to properly disclose his expert

witness seems born out of sheer negligence. “Extreme negligence or even recklessness on the

. . . part [of the offering party] in failing to comply with a discovery order will not, standing

alone, justify the sanction of excluding relevant evidence.” Francis v. State, 428 S.W.3d 850,

10
Benami’s counsel asked Fallis, “And did you perform another evaluation later on in which you found [Benami]
competent?” Her answer was somewhat confusing: “Yes. I did see him after a report in which I said he was not
competent and thought he was competent at that time later after that report, but I did not write another report.”
11
855 (Tex. Crim. App. 2014), abrogated by State v. Heath, 696 S.W.3d 677 (Tex. Crim. App.

2024). However, we find the State could not have anticipated Benami’s plan for Fallis to testify.

Nothing in the record suggests the State should have anticipated Fallis’s testimony as an

expert witness for Benami. Fallis had four meetings over a period of more than two years. Other

psychological professionals, Norman and Womack, also met with and evaluated Benami.

Benami, in his appellate brief, refers to the invoice submitted by Fallis in July 2022. As

we pointed out earlier, Fallis submitted that invoice on Balance Forensic & General

Psychological Services, Inc., letterhead. The invoice is “from” Fallis, and has specific

identifying information including Benami’s name and his case/client identification number. In

November 2022, another invoice from Balance Forensic & General Psychological Services, Inc.,

was filed with the court. That invoice was submitted by Womack and was also for an evaluation

of Benami, with the same case/client identification number. However, Benami conflates those

two examinations to suggest Fallis was responsible for both by stating, “Then, in November

2022, Dr. Fallis (or Appellant’s attorney) submitted another invoice to the court.” He makes that

statement and cites to the “Womack” invoice noted above. Both invoices bear the case/client

identification number 1703261, but Benami ignores the differing psychologists. Later, on May

4, 2023, Norman submitted a third invoice on his own letterhead.11 So, there are three invoices

in the record, submitted by three different psychologists.

The only other place Fallis is mentioned in the record before us is at one of about three

dozen “Sources of Information” reviewed by the State’s expert, McGarrahan, who examined

11
Although submitted from a different provider, that invoice also has the same case/client identification number:
1703261.
12
Benami in August 2024, at the State’s request. The State filed a Lagrone motion12 to have

Benami subject to a “psychiatric examination” by McGarrahan as the case drew close to trial.

Benami cites the motion as evidence the State knew he intended to call Fallis to testify. In its

motion, the State said, “The attorneys for the Defendant have indicated on May 10, 2024, that

they have experts that need access to the Defendant in preparation for trial.” There is no mention

of Fallis or the other two doctors that examined Benami in the State’s motion. McGarrahan’s

“Sources of Information” include the reports by Womack and Norman. And the only document

in the clerk’s record that was filed on or around May 10, 2024, was the State’s request for

designation of Benami’s experts. None of that information demonstrates that the State should

have anticipated Fallis’s testimony.

McGarrahan also testified at a hearing outside of the jury’s presence. When asked who

had seen Benami for competence, McGarrahan said some “people would have seen him

repeatedly through the competency restoration program,” a psychiatrist (whose name might have

been Dr. Benjamin), and a “Dr. Mimms, who saw him on bond.” There are no details in the

record about those providers, but McGarrahan testified she had reviewed all reports from all

doctors who had “seen” Benami since the offense.

12
In Lagrone v. State, 942 S.W.2d 602, 609–12 (Tex. Crim. App. 1997), the Texas Court of Criminal Appeals held
that a defendant’s presentation of psychiatric testimony on future-dangerousness is a “limited” waiver of Fifth
Amendment rights entitling the State to compel the defendant to an examination by the State’s psychiatric expert for
rebuttal purposes “provided, however, that the rebuttal testimony is limited to the issues raised by the defense
expert.” Lagrone, 942 S.W.2d at 610, 611 (Tex. Crim. App. 1997) (quoting Soria v. State, 933 S.W.2d 46, 58, 59
(Tex. Crim. App. 1996)). Hence, the term “Lagrone motions.” “Lagrone motions are fairly common in capital
cases where experts are involved.” Williams v. State, 707 S.W.3d 233, 239 (Tex. Crim. App. 2024); see Saldano v.
State, 232 S.W.3d 77, 82–83 (Tex. Crim. App. 2007).
13
Also, Benami did not file a notice of intent to raise an insanity defense. See TEX. CODE

CRIM. PROC. ANN. art. 46C.051. With no insanity defense announced and Benami having

announced, a week before trial, satisfaction with the determination of his competency,13 we

cannot see how or why the State should have reasonably anticipated the trial testimony of Fallis

in particular.

The rest of Benami’s arguments that the State should have anticipated Fallis’s testimony

are conclusory: “All of the evidence confirms that the State was aware that Dr. Fallis might be a

witness in either guilt/innocence or punishment. Indeed, the State retained its own expert, who

. . . examined [Benami], and the State consulted the expert about how to approach the case.”

Benami seems to base those statements on Fallis’s four meetings with him over a period of two

or more years. However, there is nothing in the record suggesting that the State should have

anticipated Fallis’s testimony, especially when at least two other psychologists evaluated Benami

over the years and at least one psychiatrist.

Benami’s appellate argument continues, “[E]ither [Benami] or Dr. Fallis filed her records

with the [trial] court and the State’s own motion explained that counsel for [Benami] intended to

call Dr. Fallis.” That seems to refer to the State’s Lagrone motion, seeking examination as trial

approached. In its Lagrone motion, the State said, “The attorneys for the Defendant have

indicated on May 10, 2024, that they have experts that need access to the Defendant in

preparation for trial.” In no way did the State’s Lagrone motion mention Fallis, Norman, or

13
At the pretrial hearing, the State said, “[T]here was also said to the [c]ourt that they did not have any concerns
regarding his competency, that they accepted the competency evaluation done more recently in August.” It is worth
pointing out that, after three days of testimony and Fallis’s offer of proof, Benami moved for a mistrial, claiming to
have “met the legal definition for insanity at the time of the offense.” But, again, Benami filed no pretrial motion to
pursue an insanity defense.
14
Womack or suggest that any particular psychologist or care-provider was a defense expert or was

expected to testify at trial. Benami also complains that the State’s discovery listed “182 ‘experts’

of which seventy-three were for mental health” and thus “the equities of this case favor

[Benami].” Benami offers no authority for that position or why it establishes that the State

should have reasonably anticipated that Fallis, as opposed to any other mental health expert,

would testify.

D. Case Law

In Chakravarthy, the defendant failed to timely notify the State of one of its intended

expert witnesses. Chakravarthy, 516 S.W.3d at 134. Although the defendant “produce[d] a fax

cover sheet that showed transmission” of his expert witness disclosure, id. at 136, he “could not

produce the confirmation sheet,” id. at 134, and the State claimed surprise when he called the

witness to the stand. At a hearing on the matter, the trial court found Chakravarthy “had

presented no evidence . . . that notice was given.” Id. at 136. The court of appeals upheld the

trial court’s exclusion of Chakravarthy’s witness. Id.

Chakravarthy cited Johnson. In Johnson, the court of appeals found that “the State could

not reasonably have anticipated that a clinical psychologist would be called by appellant to

testify during the punishment phase of the trial, and therefore could not prepare to meaningfully

cross-examine or decide to produce its own expert witness in rebuttal.” Johnson, 233 S.W.3d at

115. The Johnson court, in reaching that result, adopted the reasoning of our sister transferor

court of appeals in Strawn v. State, No. 02-02-00170-CR, 2003 WL 21235537, at *2–4 (Tex.

15
App.—Fort Worth May 29, 2003, pet. ref’d) (per curiam) (not designated for publication).14 The

trial court in Strawn excluded the defendant’s proffered expert when the defendant did not notice

his identity upon the State’s request. Strawn, 2003 WL 21235537, at *2. Although the State was

aware that an expert had performed a psychological examination of Strawn, there was “no other

evidence . . . that [Strawn] intended to use” the proffered expert at trial.15 Id. at *3.

E. Application

The trial court acted in compliance with the requirements of Article 39.14(b). While

there is no indication that Benami acted in bad faith, based on the record before us, the State

could not have reasonably anticipated Fallis’s testimony. See Nobles, 843 S.W.2d at 514–15;

Chakravarthy, 516 S.W.3d at 136. Fallis was one of several mental health professionals who

evaluated Benami in the three years before trial, but on this record, that does not show that “the

opposing party could have reasonably anticipated that the undisclosed witness would testify.”

Chakravarthy, 516 S.W.3d at 136 (quoting Johnson, 233 S.W.3d at 115).

We overrule Benami’s second point of error.

IV. Conclusion

We overrule both points of error. We affirm the trial court’s judgment.

Charles van Cleef
Justice

14
Strawn, of course, as an unpublished opinion “ha[s] no precedential value.” TEX. R. APP. P. 47.7. So, we accord
Strawn no precedential value and yet “take guidance” from it “as an aid in developing reasoning that may be
employed” in this situation. Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d)
(quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
15
Although not explicit, it appears that the proffered expert witness conducted the psychological evaluation. Strawn,
2003 WL 21235537, at *3.
16
CONCURRING OPINION

The parties did not brief this Court regarding recent, and in my view, controlling

authority from the Texas Court of Criminal Appeals. See Heath, 696 S.W.3d at 699.16 As a

result, the analysis turns, in large part, on the “bad faith” concept from thirty-year-old cases from

the early 1990s,17 which consequently, predate the 2013 Michael Morton Act by two decades.18

The analysis additionally turns on the negligence rule of Francis (that negligence by the offering

party will not result in exclusion) even though Francis has been abrogated by Heath.19 That is

the analysis resulting from how the parties have framed the issues.

Heath held that “the old concept of ‘bad faith’ no longer applie[s] to Article 39.14.”

Heath, 696 S.W.3d at 707.20 It did so based on the Michael Morton Act’s amendment of Article

16
The State did mention Heath in its brief, but on the question of statutory construction raised by Benami’s assertion
on appeal that the State’s discovery request was untimely.
17
See majority opinion at Section III.A (quoting Nobles, 843 S.W.2d at 514–15; Martinez, 867 S.W.2d at 39);
Section III.C (“First, we conclude the record does not show bad faith on Benami’s part in failing to comply with
Article 39.14(b)’s requirement.”).
18
See Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106. “The wrongful conviction of Michael
Morton provided a significant spark the Legislature needed to completely change criminal discovery in Texas.”
Watkins v. State, 619 S.W.3d 265, 274–75 (Tex. Crim. App. 2021) (emphasis added). “A simple side-by-side
comparison shows that the Michael Morton Act did not merely amend a portion of Article 39.14(a); it revamped
Article 39.14 completely. It was, as the State agrees, an overhaul of discovery in Texas.” Id. at 277.
19
See majority opinion at Section III.C (citing Francis, 428 S.W.3d at 855, abrogated by Heath); Section III.C
(“Benami’s failure to properly disclose his expert witness seems born out of sheer negligence.”).
20
Before Heath declared “bad faith” an “old concept” regarding Article 39.14, the Texas Court of Criminal Appeals
had described the defendant’s discovery obligations under 39.14(b) as limited, but reciprocal to those of the
prosecution under 39.14(a). Heath, 696 S.W.3d 707; see Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App.
2006). Indeed, Pope spoke specifically to the defense’s obligation to disclose expert witnesses. Pope, 207 S.W.3d
at 360 (“[A]rticle 39.14(b) of the Texas Code of Criminal Procedure was amended in 1999 to provide for limited
reciprocal discovery of the opposing side’s potential expert witnesses.”); see also Strawn, 2003 WL 21235537, at *2
(When considering “a defendant’s failure to timely disclose the identity of testifying experts pursuant to a pretrial
discovery order,” the Second Court of Appeals “look[ed] to cases discussing sanctions permitted to remedy the
State’s failure to timely disclose expert witnesses for guidance.”).
17
39.14. Id. at 692. Heath also addressed the source and scope of a trial court’s authority to

fashion remedies for discovery violations. Id. at 706–08. They are a matter of the trial court’s

“inherent authority.” Id. at 706–07. Before 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.” Id. at 706. As a result, “cases analyzed the remedy for a statutory

discovery violation as a sanction for the violation of a court order.” Id. (emphasis added). Now,

however, discovery requirements are included in Article 39.14 itself. Id. at 707. Here, for

example, Benami acknowledges the defendant’s duty to disclose experts is found in Article

39.14(b) (in his second issue) but asserts (in his first issue) that the State did not make a timely

request so as to invoke Benami’s statutory duty under Article 39.14(b).

Since the parties did not brief Heath, the majority does not address it. Reason not to do

so can be found in Heath itself. See id. at 706 (“[O]ur prior cases focused on exclusion as a

remedy in the context of bad faith because those were the arguments raised, not because the trial

court’s inherent authority is so limited.”). Further, this is an unpublished opinion. See Williams

v. State, 603 S.W.3d 439, 444 (Tex. Crim. App. 2020) (“[T]he court of appeals’s decision to not

publish its opinion reflects its intent to not establish a precedent.” (citing TEX. R. APP. P.

47.7(a))). Further still, there is the concern that filling in gaps in the parties’ briefing veers

towards advocacy: “When an appellant has narrowed [his] arguments on appeal to address only

a particular basis for disturbing a trial court’s ruling, it is not for the appellate court to then scour

the record in search of other possible bases for reversing the trial court’s ruling on appeal.”

Wolfe v. State, 509 S.W.3d 325, 345 (Tex. Crim. App. 2017). Those are compelling reasons.

18
On the other hand, when the parties miss a recent, significant Texas Court of Criminal

Appeals case, we are not required to go along with them in muddying the waters of the law. See

Oliva v. State, 548 S.W.3d 518, 520 (Tex. Crim. App. 2018) (“We, of course, are not bound by

any agreement or concessions by the parties on an issue of law.”); Serrano v. State, 636 S.W.3d

717, 722–23 (Tex. App.—Fort Worth 2021, pet. ref’d) (citing Oliva); Young v. United States,

315 U.S. 257, 259 (1942) (“[T]he proper administration of the criminal law cannot be left merely

to the stipulation of parties.”).

The above had me teetering between these approaches. What follows tipped me into this

concurrence.

In addition to speaking to the substance of discovery obligations, Heath spoke to how a

trial court’s decision regarding discovery violations should be reviewed. Heath, 696 S.W.3d at

688–89. In one sense, there is nothing new in Heath; it used the familiar “zone of reasonable

disagreement” gauge when conducting abuse-of-discretion review. Id. at 689. But in a

significant way, Heath is new. As seen above, Heath resolved a previously unresolved question

of whether a showing of bad faith is required for a discovery violation to result in the exclusion

of evidence. Id. at 683 (“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.”). Having declared the concept of bad faith outdated, Heath then spoke

directly to the application of the abuse of discretion when reviewing remedies imposed by the

trial court for discovery violations:

We acknowledge that a continuance would be a much more restrained solution.
But that’s not the question before us. The question before us is whether the trial
19
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. We agree with the court of appeals that the trial court
was within its discretion to fashion a remedy it deemed appropriate.

....

. . . . 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.

Id. at 707–08 (footnote omitted) (citation omitted).

Reviewing a remedy for a discovery violation is what we are doing here. In my

estimation, Heath bears discussion; it is too important for too many reasons. The first reason is

that Heath explains how to apply the abuse of discretion standard of review to an exclusion of

evidence as a remedy for a discovery violation. But it is hard to stop there, because what Heath

has to say about the application of the standard of review is linked to what Heath has to say on

the substance.

The Second Court of Appeals is aware of the significance of Heath. See, e.g., Hance v.

State, 714 S.W.3d 775, 809 (Tex. App.—Fort Worth 2025, no pet.) (citing Heath, 696 S.W.3d at

703); State v. Johnson, No. 02-24-00062-CR, 2024 WL 5162689, at *14, *18–19 (Tex. App.—

Fort Worth Dec. 19, 2024, pet. ref’d) (mem. op., not designated for publication). We stand in

their shoes. See TEX. R. APP. P. 41.3. My best guess is that, rather than accepting the outdated

framework presented by the parties, our sister court would have looked to Heath. I do not,

however, believe that would have changed the outcome. On August 22, 2024, additional counsel

20
for Benami, Levine, filed a notice of appearance. Four days later, on August 26, 2024, the date

voir dire was set to begin, Levine appeared before the trial court in person. Levine stated,

“[T]here’s been a failure on the Defense’s part to pursue a number of issues that are relevant to

guilt/innocence and punishments. . . . Dr. Fallis was never asked to opine, to interview, to do

anything in regards to potential insanity at the time of the event.” Levine continued, “I can’t tell

you why; I wasn’t on the case then.” The trial court, therefore, had reason to deny the late

designation of Fallis. In its own decisions, the Second Court of Appeals has emphasized the

“restrained solution” aspect of Heath. Johnson, 2024 WL 5162689, at *19 (quoting Heath, 696

S.W.3d at 708). On appeal, however, Benami asserts that the trial court erred by excluding the

testimony of Fallis; Benami does not assert that the trial court erred by not granting a

continuance.21 Thus, in my view, it would have come down to Heath: “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.” Heath, 696 S.W.3d at 708.

Jeff Rambin
Justice

Date Submitted: July 2, 2025
Date Decided: October 15, 2025

Do Not Publish

21
Benami notes that he did request a continuance in the trial court, but he does not tie that fact to a request in the
court of appeals. Nor did Benami brief whether “the formal requirements for a continuance were met” as discussed
in Heath. Heath, 696 S.W.3d at 708.
21