Texas Bar Journal • February 2025

A Tale of Two Men and Two Statutes

A look at Watkins and Heath and Texas criminal discovery.

Written by Joey Contreras

Ethan Head (center), the high scorer of the July 2023 Texas Bar Examination and a graduate of the University of Texas School of Law, with (from left) Supreme Court of Texas Chief Justice Nathan L. Hecht, Texas Board of Law Examiners Executive Director Nahdiah Hoang, Texas Board of Law Examiners Member C. Alfred Mackenzie, and Supreme Court of Texas Justice Brett Busb

1986, Michael Morton was charged with his wife’s murder. He received a life sentence. Morton had no idea that unassailable evidence of his innocence existed and that this evidence—undisclosed—was in the possession of the state from the moment his trial began.

Ralph Watkins was found guilty of a drug offense and the prosecution proceeded to present undisclosed physical evidence of his criminal career to his sentencing jury. On appeal, Watkins unsuccessfully argued before the 10th Court of Appeals in Waco that the state had failed to disclose numerous evidentiary items used at the punishment phase of his trial after having made a timely Texas Code of Criminal Procedure Article 39.14 request for disclosure.1

TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 39.14

Discovery is governed by Article 39.14 of the Texas Code of Criminal Procedure. Article 39.14 was originally enacted in 1965.2 At the time Morton was prosecuted, the former version of Article 39.14 read, in relevant part, as follows:

(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, … the court in which an action is pending shall order the State [to] produce … 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. (Pre-Morton version of Art. 39.14(a)) (emphasis added).

At the time Watkins was prosecuted, Article 39.14 had been amended3 and read, in relevant part, as follows:

(a) [A]s soon as practicable after receiving a timely request from the defendant the state shall produce … 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. (post-Morton version of Art. 39.14(a))(emphasis added).

The change in Article 39.14 was made in 2013 and the amended version took effect in 2014 in a way that “revamped 39.14 completely” and represented “an overhaul of discovery in Texas.”4 This overhaul was known as the “Michael Morton Act.” Today (and at the time of Watkins’ trial), a defendant makes his request for discovery directly to the prosecution; the trial court does not order discovery. The changes are dramatic. “On the whole, the statutory changes broaden criminal discovery for defendants, making disclosure the rule and nondisclosure the exception.”

Morton’s prosecutors failed to disclose that an eyewitness—his son—told police that Morton was not home at the time of the murder. And prosecutors failed to disclose that an item of clothing had been recovered from near the crime scene—a bloodstained bandanna that would prove to contain the DNA of Michael Morton’s wife and the real killer.6 This injustice triggered the amended and current version of Article 39.14.

DISCOVERY NOW?
In both the abolished, pre-Morton version of Article 39.14 and the current post-Morton version of Article 39.14, discoverable evidence was defined as items “that constitute or contain evidence material to any matter involved in the action …”7 The operative word is “material”—any tangible item that is material to the case was and is discoverable. Watkins v. State has now defined “material” in the context of Article 39.14:

“[E]vidence need only have a logical connection to a fact of consequence to any number of subsidiary issues rather than to the outcome itself. In the context of the statutory phrase, and as a matter of modern legal usage, ‘the definition of material is one that most educated people would match with relevant.’”8

. . .

“[W]e hold that the word ‘material’ as it appears in the statute means ‘having a logical connection to a consequential fact’ and is synonymous with ‘relevant’9 in light to the context in which it is used in the statute.”10

Upon request for discovery, the prosecution must make available any item that has a logical connection to any fact that is of some consequence. The prosecution is required to provide any item in its possession that is relevant to any issue relating to the case—including punishment. Relevant simply means that the item tends to make any issue of consequence more or less likely.11

WATKINS V. STATE
In Watkins, counsel for Ralph Watkins timely requested discovery of items “material to any matter involved in the case” pursuant to post-Morton Article 39.14.12 Watkins’ counsel objected to admission of the undisclosed exhibits for failure to comply with Article 39.14.13 The trial court exercised its discretion—discretion that it did not have—and admitted the exhibits over objection.14

The court of appeals found the admitted items were not material for purposes of Article 39.14 because nondisclosure did not affect the outcome of the trial.15 This outcome-based analysis was error and the Court of Criminal Appeals reversed and remanded.16
Trial courts no longer possess discretion in discovery matters as they did before the Morton amendment of Article 39.14.17 The trial court’s role is one of enforcement in the form of sanction: failure to comply with Article 39.14 authorizes the trial court to refuse admission of the undisclosed items.18

The state’s good faith effort at compliance with Article 39.14’s is not relevant. The Watkins court gave no consideration to any knowledge that Watkins’ lawyer may have had about the undisclosed punishment evidence. Article 39.14 is written in mandatory language. If a defendant makes a request for disclosure, disclosure is mandated.19

Materiality is not outcome determinative—it does not require that the evidence requested have a consequential effect on the ultimate outcome of guilt/innocence or punishment. The evidence need only be relevant to any issue, direct or subsidiary, in the proceedings. Arguably, the elimination of any distinction between direct evidence and subsidiary evidence so broadens “materiality” as to create an open file requirement.

The Watkins court forcefully held any material evidence “must be disclosed upon request without any showing of ‘good cause’ or the need to secure a discretionary trial court order. Disclosure is mandatory and must occur ‘as soon as practicable.’”20

When informed at trial that there has been a failure to disclose material evidence, it is improper for the trial court to: inquire whether the defense was on notice of the undisclosed material evidence; assess whether nondisclosure will impact the trial outcome; inquire why the disclosure was not made or the good faith of the prosecution; and require that the defense have made more than a timely 39.14 request.21

STATE V. HEATH
The Texas Court of Criminal Appeals has handed down its second major post-Morton Article 39.14 decision.22 Six days before trial was to begin, the defendant was provided discovery of a 911 call.23 The defendant objected because the state had violated Article 39.14(a)’s requirement that discovery be disclosed as soon as practicable upon request.24

The prosecution responded that it did not learn of the existence of the 911 call until shortly before the trial date because the recording was in the possession of the sheriff ’s office.25 The prosecution argued that this lack of knowledge and lack of bad faith by the state, combined with the possession of the 911 call by an entity other than the prosecution, absolved the state of any 39.14(a) obligation.26

The Heath court held, “[I]tems in the possession, control, or custody of ‘the state,’ include items in the possession of law enforcement.”27 The court added, “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.”28 The Heath opinion describes the state’s duty as a mandate that lies with the prosecution and not law enforcement agencies or a third party with whom it contracts “such as crime laboratories.”29

“[T]he State has an obligation to exercise reasonable diligence to ascertain what discoverable evidence is at its disposal. … ‘[O]nce a discovery item is requested, the State now has an affirmative duty to search for the item and produce it to the defendant in a timely manner.’”30 Disclosure is timely only if done “quickly.”31

Further, “[W]e 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.”32 The Heath court emphasized that in fashioning a sanction for the state’s failure to comply with its discovery mandate, it is wholly irrelevant whether the state’s noncompliance was not in bad faith, through inadvertence, or lack of knowledge of the evidence’s existence.33 The state’s first obligation is “to exercise reasonable diligence in seeking out discoverable items.”34

CONCLUSION
At the moment a trial court learns the state has failed to promptly disclose material evidence in its possession, the court should act. The trial court must order remedial action or sanction the state and consider barring the undisclosed evidence from admission. The court should also consider excluding testimony related to the undisclosed evidence.

NOTES

1. Watkins v. State, 554 S.W.3d 819 (Tex. App.—Waco 2018), reversed, 619 S.W.3d 265 (Tex. Crim. App. 2021). The facts surrounding Michael Morton’s ordeal are taken from a Texas Monthly two-part feature and findings from the habeas corpus litigation
filed on Michael Morton’s behalf; Pamela Colloff, An Innocent Man, Pts. One and Two, Texas Monthly, November 2012 and December 2012; See, e.g., In re Morton, 326 S.W.3d 634 (Tex. App.—Austin 2010).
2. Tex. Code Crim. Proc. (1965). Acts 1965, 59th Leg., 317, ch. 722, § 1.
3. Acts 2013, 83rd Leg., ch. 49 (SB 1611), § 2, effective January 1, 2014.
4. Watkins v. State, 619 S.W.3d 265, 267 (Tex. Crim. App. 2021).
5. Id. at 277.
6. The real killer would eventually be convicted of two separate murders of women sleeping in their beds—one of whom was Morton’s wife. Prompt disclosure of the withheld evidence could very well have led to the killer’s capture and prevented the second murder.
7. Tex. Code Crim. Proc. Art 39.14.
8. Supra note 4 at 280.
9. Although Watkins did not cite the Texas Rules of Evidence in this quote or its opinion, one cannot avoid the connection to the time-tested definition of relevance: “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the action.” Tex. Rule Evid. 401.
10. Supra note 4 at 290.
11. A good example of the expansiveness of “material” and its requirement of mandated disclosure is that even the data underlying the prosecution’s expert witness is subject to discovery. “[T]he underlying facts and data supporting the opinion are as material as the opinion itself,” and are subject to the disclosure requirement of Art. 39.14; see In re State, 659 S.W.3d 1, 13 (Tex. App.—El Paso 2020).
12. Watkins, 619 S.W.3d 265, at 269.
13. Id.
14. Watkins, 619 S.W.3d 265, at 269-70, 280.
15. Watkins, 554 S.W.3d 819, at 822.
16. Supra note 4 at 291.
17. Trial courts do play a ministerial enforcement role under the new discovery regime. The prosecution is required to document the items of discovery it disclosed, and before accepting a guilty plea, the court must have the parties confirm that the list of items claimed to have been disclosed were in fact disclosed. Art. 39.14(i),(j).
18. While the Watkins opinion did not expressly state the trial court must exclude material that was not disclosed, it framed the preliminary question before the court as, “So did the trial court err to admit these exhibits over Appellant’s objection?”; Supra note 4 at 268. 19. Supra note 4 at 277-78.
20. Id. at 277.
21. The full implications of Watkins have not been uniformly appreciated. Sekula v. State, 2018 WL 1402066 (Tex. App.—San Antonio 2018) (not designated for publication) provides an example of a failure to grasp the meaning and dictates of 39.14. In Sekula, defense counsel made a timely 39.14 request for disclosure of the names of the state’s experts; the state failed to comply. The appellate court ruled that the trial court had discretion to permit the testimony of the undisclosed experts in spite of a clear violation of Art. 39.14. The court reasoned that the trial court, in exercising its discretion, was permitted to look to the good or bad faith of the prosecutors and the ability of defense counsel to anticipate the testimony.
22. State v. Heath, — S.W.3d —, 2024 WL 2952387 (Tex. Crim. App. 2024).
23. Id.
24. The defense was provided the 911 call 14 months after he made his request for discovery. Id. at 1-2.
25. Id.
26. Id. at 2.
27. Id. at 9.
28. Id.
29. Id. at 10.
30. Id. at 16.
31. Id. at 16.
32. Id. at 17.
33. Id. at 20.
34. Id.

Joey ContrerasJOEY CONTRERAS attended Cornell University and the University of Texas School of Law. He was a state and federal prosecutor before serving as a district judge. Contreras currently practices in San Antonio with Ramos & Del Cueto, where he focuses on federal criminal defense.

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