Pretrial discovery in criminal cases in Texas is governed by Article 39.14 of the Texas Code of Criminal Procedure. The Texas Legislature enacted the discovery statute in 1965. The essential purpose of the rule was to enforce the strict duty Texas prosecutors have under Article 2.01 of the Code of Criminal Procedure “not to convict, but to see that justice is done.”


Discovery Rules in Criminal Cases Evolve Slowly


Article 39.14 was enacted in response to the 1963 U.S. Supreme Court decision Brady v. Maryland that required prosecutors to disclose to a criminal defendant, upon request by the defendant, any exculpatory evidence “material” to the issue of guilt or punishment.


To say that Texas prosecutors never took their Article 2.01 ethical duty seriously would be more than a classic understatement. Lacking any ethical or constitutional restraints before Brady, Texas prosecutors tried criminal cases pretty much as they pleased. Issues of due process, guilt beyond a reasonable doubt, or the appropriate punishment to be imposed rested solely at the discretion of given prosecutors in each of Texas’s 254 counties.


It was “law-and-order,” “convict at any cost,” and “hang ’em from the highest oak tree” kind of prosecutorial justice. The mindset inherited from handed-down mantras of the state’s violent and murderous Wild West sense of justice shaped many pre-Brady prosecutorial decisions. Thousands of innocent people were wrongfully convicted, and hundreds (if not more) were executed. The odds of justice were abysmal if the defendant was Black or Brown.


Brady v Maryland Leaves “Materiality” Open to Debate


The Brady Rule was designed to stop the historical prosecutorial misconduct woven into the nation’s criminal justice system, especially in Old South states like Texas. However, Brady’s immediate problem was that the Supreme Court did not define what constituted “material” evidence.


Over the next five decades, the Supreme Court, all the federal courts of appeals, thousands of U.S. District Court judges, and hundreds of state supreme courts and intermediate courts of appeals grappled with the recurring “materiality” issue.


Lacking any clear definition of materiality, Texas prosecutors continued to wrongfully convict and execute innocent people by either withholding or manufacturing false evidence.


Texas Court Struggled With Discovery Obligations 


While these post-Brady injustices were taking place, the Texas Court of Criminal Appeals tried to shape and mint a precise definition of materiality through a litany of decisions. Finally, in 2002 in Hampton v. State, the Court of Criminal Appeals decided to firmly follow the lead of the U.S. Supreme Court’s 1976 decision in United States v. Agurs Agurs held that the nondisclosure of favorable evidence is not a per se due process violation if evidence was not “material” to guilt or punishment.


The Hampton court specifically held that a criminal defendant must show that, “in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure.”


In other words, it was judicially acceptable to withhold favorable evidence, particularly relating to issues of punishment, against guilty defendants whose pretrial level of guilt was assessed and determined by none other than the prosecutor.


Wrongful Conviction and Imprisonment of Michael Morton Sparks Discovery Reform


Then came the Michael Morton Act of 2013.


In February 1987, Michael Morton was convicted for the 1986 murder of his wife, Christine, in Williamson County, Texas. Prosecutors in the case knowingly withheld documentary and physical evidence that showed Morton was actually innocent of the crime.


On October 12, 2011, the Texas Court of Criminal Appeals officially declared Morton factually innocent of the crime charged.


With literally dozens of highly-publicized Michael Morton-like cases making prosecutorial misconduct a blight on the state’s criminal justice system, the Texas Legislature passed the Michael Morton Act. The Act amended Article 39.14, intending to resolve the materiality issue by inserting the following language in the statute: requiring state prosecutors to produce evidence that is “material to any matter involved in the action.”


That has been the discovery rule in the state for the past seven years.


However, given human nature to cheat, the term proved still broad enough to allow individual prosecutors to play loose with discovery evidence.


On March 21, 2021, in Watkins v. State, the Texas Court of Criminal Appeals effectively said that since the legislature used the phrase “material to any matter involved in the action” in Article 39.14, prior precedent defining “due-process materiality” analysis was inapplicable. 


Defense Makes Proper 39.14 Request for Discovery


The Watkins court dealt with a situation in which counsel for the defense made a pretrial request under the Michael Morton version of Article 39.14 for the disclosure of “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.” 


The prosecution gave defense counsel pretrial notice that it planned to introduce 33 exhibits concerning the defendant’s criminal history during the punishment phase of the trial. However, the trial prosecutor did not disclose the actual exhibits until just before he introduced them into evidence during the punishment phase. Over a defense objection that the documents had not been timely disclosed, the trial court allowed the admission of the criminal history information. A court of appeals upheld the trial court’s ruling.


At the outset of its analysis in Watkins, the Court of Criminal opened with this question:


“So did the trial court err to admit these exhibits over [defendant’s] objection?”


39.14 Requires Disclosure of Evidence Material to Any Matter Involved in the Matter


The Court added: “The answer to that question turns upon whether these exhibits’ constitute or contain evidence material to any matter involved in the action.’ That requires this Court to construe the phrase ‘material to any matter involved in the action’ as it appears in Article 39.14 of the Code of Criminal Procedure.”


Disclosure is the Rule, Non-Disclosure is the Exception


The Court of Criminal Appeals then decided that:


“Under these circumstances, we construe the amended statute as adopting the ordinary definition of ‘material.’ evidence is ‘material’ if it has ‘some logical connection to a consequential fact.’ Whether evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial. In this case, the exhibits at issue were ‘material’ because they had a logical connection to subsidiary punishment facts. We reverse the court of appeals and remand the case so that the court of appeals may analyze whether Appellant was harmed by the lack of disclosure.”


With that general conclusion said and done, the Court addressed the difference between “material” evidence disclosure pre-Michael Morton Act and a post-Michael Morton Act disclosure:


“On the whole, the statutory changes {Michael Morton Act} broaden criminal discovery for defendants, making disclosure the rule and nondisclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. Our Legislature did not limit the applicability of Article 39.14(h) to ‘material’ evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland. This subsection blankets the exact type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not ‘material.’


“Also, the statute requires disclosure of evidence that merely ‘tends’ to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is ‘material’ under Brady v. Maryland.”


State Must Disclose Regardless of Materiality


In effect, a defense attorney’s pretrial request for Article 39.14 disclosure today imposes an affirmative duty on the prosecutor to disclose all evidence, regardless of prosecutorial determinations about materiality. In Watkins the Court affirmed this rule when it said, “… the statutory changes broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception.”


The old days of hiding the ball are over when it comes to criminal discovery in Texas. Texas prosecutors would be wise to read the Watkins decision and remember their ethical and statutory duty “not to convict, but to see that justice is done.”