Case Summaries

Each week, TDCAA staff members summarize the most important cases from Texas and federal criminal courts and provide insightful commentary on how those cases could impact the criminal justice system as well as a link to the opinions. Find a library of previous Weekly Case Summaries here.


June 14, 2024

Texas Court of Criminal Appeals

State v. Heath

No. PD-0156-22                      6/12/24


Does the mandate in Code of Criminal Procedure Art. 39.14(a) that “the State” produce discovery “as soon as practicable after receiving a timely request” include discoverable items that, without the prosecutor’s knowledge, are in the possession of law enforcement agencies?


Yes. “The State” includes prosecutors and law enforcement, and the phrase “as soon as practicable” means “as soon as reasonably possible and does not contain a knowledge requirement on behalf of the prosecution.” The Court further concluded that a trial court has authority to exclude evidence that was not timely disclosed by the State even without a showing of bad faith or prejudice. Read opinion.

Dissent (Keel, J., joined by Keller, P.J. and Yeary, J.):

“When the Legislature means ‘law enforcement,’ it spells it out. Since it did not do that in Article 39.14, we should not, either. In fact, the amendments to Article 39.14 and the later enactment of Article 2.1397 demonstrate that ‘the state’ excludes law enforcement. The majority’s contrary reading is at odds with the rest of the Code of Criminal Procedure where ‘the state’ most often means both the State of Texas as a party to a criminal lawsuit and the prosecution as its representative but never means—as far as I can see—law enforcement. Reading ‘law enforcement’ into ‘the state’ makes Article 39.14 a tangle of contradictions and anomalies that will say, for example, that offense reports are both discoverable and not discoverable.” Read dissent.


In pages 22 to 33 of the majority opinion, the court cites to no Art. 39.14 cases that have construed “the state” to include “law enforcement.” So presumably this case is the first one to do that. On page 27, in footnote 82, the majority notes that, under Brady v. Maryland, the “state” has long included “law enforcement,” so perhaps the majority was attempting to bring its Art. 39.14 jurisprudence in line with the Brady v. Maryland jurisprudence.

However, in construing the phrase “as soon as practicable,” the majority avoids attempting to harmonize Art. 39.14 jurisprudence with Brady v. Maryland jurisprudence—because Brady and its progeny have imposed some sort of mental-state requirement on the part of the prosecutor before a violation by the prosecutor could be found. The majority notes that Art. 39.14 has no such mental-state requirement, in the same breath calling a violation of Art. 39.14 nothing more than a “mere statutory violation.” Make no mistake. The removal of any kind of mental-state requirement on the part of the prosecutor is a big deal. The majority makes it clear that “practicable” can mean—does mean—before the prosecutor has any kind of mental-state with regard to the undisclosed evidence, and before the prosecutor knows about the existence of the undisclosed evidence. The majority makes it clear that, because there is no mental-state requirement on the part of the prosecutor, the prosecutor then has a duty to seek out what he or she does not know about.

The majority opinion decides that the 911 recording that was not disclosed in a timely fashion was material evidence. We now know from Watkins v. State that “material” essentially means “relevant” in this context, and a 911 recording from the time of the offense is certainly relevant evidence. The majority then concludes that the trial judge had the “inherent authority” to rule that this relevant evidence was forever excludable from the defendant’s trial. The trial judge had the inherent authority to reject a lesser remedy, such as the offered continuance. In support of giving the trial judge this kind of discretion, the majority relies upon a 1978 decision—long before the Michael Morton Act and the “as soon as practicable” requirement was added to Art. 39.14. This type of discretion or inherent authority goes far beyond the power to exclude evidence under the exclusionary rule—Art. 38.23 or the Constitution—about which there is an extensive body of case law setting forth the scope and limits of the exclusionary rule.

After this decision, will prosecutors be able to successfully argue in favor of a continuance after the untimely disclosure of evidence previously unknown to the prosecutor? Only time—and a great deal of future litigation—will tell. In the meantime, look to the final paragraph of the majority for—perhaps—some kind of roadmap that could be used to suggest a remedy other than exclusion. In this case, there was: (1) an identified failure to seek out evidence on the part of the prosecutor, (2) a lengthy amount of time between the discovery request and the ultimate disclosure, and (3) the State’s repeated previous announcements of ready to go to trial. If a future case does not have one or all of these factors, perhaps a trial judge can be required to allow a continuance. Perhaps.

Null v. State

No. PD-0192-22                                  6/12/24


Did the trial judge correctly allow a DNA analyst to compare the defendant’s DNA profile (which she developed) to profiles that an analyst at a third-party laboratory developed?


Yes. A testifying expert can rely on the analysis of a non-testifying expert. T.R.Evid. 702 does not require the State to call sponsoring witnesses from both laboratories to compare DNA profiles, and experts need not have firsthand knowledge of the facts or data to form an opinion under T.R.Evid. 703. The Court concluded that the defendant’s general objection to the analyst’s testimony was insufficient to preserve his specific complaint about scientific theories and methodologies the analyst relied on, and, “even if he had, the court of appeals could have taken judicial notice of the widespread acceptance of DNA science.” Read opinion.

Concurrence (Yeary, J.):

“As I understand it, I agree with the result reached by the Court’s opinion today. But the Court’s opinion seems to focus more than I would prefer on the requirements of the Federal Rules of Evidence and commentaries to those rules. Those rules do not control in Texas state courts. Only our state rules apply, and I am concerned that the Court creates confusion by seeming to suggest that the Federal Rules have some controlling effect on the admissibility of evidence in Texas. Moreover, a focus on the text of our state rules makes clear that there is a difference between expert testimony by a testifying expert and the facts or data underlying that expert’s opinion. The Court’s opinion seems to acknowledge the difference to which I refer, but I remain somewhat tentative about the clarity of its explanation.” Read concurrence.


This decision is largely about what can be the basis for an expert’s opinion—a Rule 703 issue—and not the reliability of the expert’s opinion—a Rule 702 issue. That question is answered at the top of page 15 of the court’s opinion: The testifying expert could rely upon the analysis of a non-testifying expert. There is an apparent Confrontation-Clause issue that can come up in these types of cases, but this decision is really only about the construction of the rules of evidence: specifically, Rules 702 and 703. Any prosecutor who desires to introduce expert testimony—especially in a hard science like DNA—should read this decision. As to the Confrontation Clause issue, look to the United States Supreme Court, which will be issuing Smith v. Arizona any day now.

Texas Court of Appeals

Caudill v. State

No. 06-23-00248-CR                           6/10/24


Is evidence that a defendant was required to verify his sex offender registration in another state every 90 days sufficient to meet that element for second-degree felony failure to register under Code of Criminal Procedure Art. 62.058(b)?


No. Although there was evidence that Maryland required the defendant to register every 90 days, once the defendant moved to Texas, he would have had to be notified by a local law enforcement authority of the requirement to verify his registration every 90 days in Texas. Read opinion.


In this case, the State sought to raise the defendant’s punishment from the third-degree felony to the second-degree felony under Art. 62.102(b)(3)—alleging that the defendant was required to verify his registration every 90 days. But to do that, the State had to prove that the relevant requirements of Art. 62.058 applied. According to the court of appeals, because the State could not show that any of the three possibilities under Art. 62.058(a) applied, the State was required to show that the possibility under Art. 62.058(b) applied—that the defendant was notified by the local law enforcement authority of the requirement to verify his registration every 90 days. This decision shows the very technical requirements of Chapter 62 of the Code of Criminal Procedure—for both the defendant and law enforcement. This defendant does not get an entirely new trial, however. His punishment is reformed to that for a third-degree felony, and he gets only a new punishment hearing.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Joe Hooker.