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  • Brian Foley

Montgomery County Criminal Defense Attorney - Watkins v. State what does the state have to give you?

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

Everyone knows that the police and prosecutors gather evidence and prosecute cases. But how much of that evidence does the State have to give you as a criminal defendant? How far does the law protect your right to access this information?

We call this process discovery. Discovery is the process of the prosecution delivering copies of evidence and providing access to evidence. Well prior to 2013 the Texas Code of Criminal Procedure 39.14 consisted of only two subsections. Courts decided that there was no general right of discovery in Texas criminal cases. Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980).

This all changed when the Texas Legislature passed what is known as the Michael Morton Act. Michael Morton was a man who was wrongly convicted of the murder of his wife because the district attorney hid evidence of a bloody bandana found near the home by police.

The purpose of the Michael Morton act was to try to prevent these wrongful convictions by allowing criminal defendants access to the evidence that police collected and stored for prosecution. When the law first came out I was a prosecutor and it was the general consensus of my prosecutor friends that this law had gone to far but what else could we do but provide everything. If we had a copy of it in our file we all felt like we basically needed to disclose it. The only thing we could think of that wouldn't count would be our private notes and mental impressions about the evidence.

But in recent years the purpose of the Michael Morton Act seems to have faded. I find that more and more attempts to "protect" evidence have been tried. The old assumption of "give them everything." Seems not to be embraced.

In 2021 The Texas Court of Criminal Appeals decided Watkins v. State, 619 S.W. 3d 265 (Tex. Crim. App. 2021) and in my opinion breathed new life into the idea that criminal defendants should be "given everything."

In Watkins the State admitted 33 exhibits during the punishment phase of the trial including booking records, pen packets, and judgments of prior convictions that were used to prove two prior convictions for enhancement and extraneous punishment offenses. Prior to Trial the defense attorney requested "any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case" pursuant to Article 39.14.

The word "material" and phrase "material to any matter involved int he case" became the subject of the Watkins decision. That language is REALLY broad. I felt that way back when it was passed. Prosecutors everywhere that I could find them felt like that could arguably cover anything in the file. The credibility of witnesses would always be material to the case. How about the personnel file of every officer? Who gets to decide what is material?

Watkins held "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. Watkins v. State, 619 S.W.3d 265, 269 (Tex. Crim. App. 2021).

The Court went on "“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.” Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021).

"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."

Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021)

The Court adopts a very broad interpretation of the word "material" and explicitly links it to the understanding of "relevant" evidence. "Given the statutory context in which the word "material" appears, the distinction between the meanings of the terms "material" and "relevant" is untenable. ” Watkins v. State, 619 S.W.3d 265, 280 (Tex. Crim. App. 2021).

You may have heard before that relevant evidence doesn't have to be an entire wall but can be a brick in the wall. "“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” Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021).

So what about those personnel records? What if they don't tend to show that the officer is delinquent or a liar? Does that matter? No, its material if it has any tendency to make the existence of any fact of consequence to the determination of the action MORE probable or LESS probable. So if it shows that he is very trustworthy then its still relevant because his credibility is relevant to the issues in the case.

The Court's own words are that it only need to provide a "small nudge." So I think this means that if there is any conceivable argument that the evidence is relevant then they are going to have to disclose it to you.


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