Moten v. State, No. 10-24-00183-CR (Tex. App.—Waco Oct. 9, 2025)
In a significant decision clarifying prosecutor discovery obligations under Texas law, the Tenth Court of Appeals recently addressed whether the State must proactively seek out recordings of jail phone calls made by defendants. In Moten v. State, the court held that prosecutors have an affirmative duty to search for jail call recordings in response to discovery requests, even when stored on third-party servers, and cannot wait until a witness alerts them to such calls’ existence.
While finding a discovery violation and an abuse of discretion in admitting the improperly disclosed evidence, the court ultimately affirmed the conviction on harmless error grounds.
The Background
Herbert Wayne Moten was charged with aggravated assault with a deadly weapon for stabbing Keiland Harris with a knife, causing serious bodily injury. The incident occurred outside a bar at closing time on August 6, 2023. Within hours of his arrest that morning, Moten made phone calls from the Navarro County jail to Teagan McGuire, a witness in the case.
On October 17, 2023 — more than seven months before trial — Moten filed a request for discovery under Texas Code of Criminal Procedure Article 39.14, specifically requesting any audio recordings of Moten or any witness. This timely discovery request triggered the State’s obligations under the statute.
The Discovery Violation
The discovery problem arose during trial. Jury selection occurred on a Friday. By Friday afternoon, the prosecutor had learned from witness Teagan McGuire that Moten had called her twice from jail. The prosecutor received the actual audio recordings of those calls on Monday morning — the day trial testimony was to begin, and after the jury had already been selected.
When the prosecutor disclosed this development before opening statements on Monday morning, Moten objected on the basis that the production was untimely and prevented him from effectively preparing for trial. The trial court initially deferred ruling, stating they would “take that up when we get to that point.” When the State called McGuire to testify and sought to introduce the recordings, Moten renewed his objections. The trial court overruled the objections and allowed the recordings to be played for the jury.
The State’s Argument
The State advanced two primary arguments to justify the late disclosure:
- Lack of Knowledge: The prosecutor claimed he did not know about the calls and had no way to know about them until McGuire mentioned them on Friday afternoon.
- Possession Theory: The State argued it was not in possession of the calls because they were stored on a server belonging to a third-party vendor that contracted with the Navarro County Sheriff’s Office to maintain jail phone call recordings.
The Court’s Legal Analysis
Standard of Review
The court applied an abuse of discretion standard to review the trial court’s evidentiary ruling. Under this standard, an abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. The appellate court will sustain the trial court’s decision if it was correct on any applicable theory of law.
Article 39.14’s Requirements
The court began its analysis by examining the plain language of Texas Code of Criminal Procedure Article 39.14(a), which requires the State to produce “as soon as practicable after receiving a timely request from the defendant” various forms of evidence, including recorded statements that are “material to any matter involved in the action” and “in the possession, custody, or control of the state or any person under contract with the state.”
Drawing heavily on the Texas Court of Criminal Appeals’ recent decision in State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), the court outlined several key principles:
- Broad Definition of “State:” Items in the possession, control, or custody of the State include items in the possession of law enforcement agencies.
- No Knowledge Requirement: Article 39.14 does not contain a knowledge requirement. Even if the prosecutor is unaware of discoverable items in the State’s possession, the State has an obligation to exercise reasonable diligence.
- Affirmative Duty to Search: Once 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.”
- “Practicable” Means Reasonable Diligence: The term “practicable” includes a requirement of reasonable diligence on the part of the prosecutor to discover what items the State intends to introduce at trial.
- Disclosure as the Rule: Article 39.14 “removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State’s obligation to disclose,” making “disclosure the rule and non-disclosure the exception.”
Rejection of the “Third-Party Server” Argument
The court decisively rejected the State’s argument that the jail calls were not in its possession because they were stored on a third-party vendor’s server. The court noted that Article 39.14(a) specifically extends to evidence “in the possession, custody, or control of the state or any person under contract with the state.”
Since the Navarro County Sheriff’s Office contracted with the third-party company to maintain jail phone calls, the recordings —”although on a server belonging to a company contracting with the Sheriff’s office, were continually in the State’s possession.”
Finding of Inadequate Diligence
The court’s most significant holding addressed the prosecutor’s claim that he could not have known about the calls until the witness mentioned them. The court found this explanation inadequate:
“Here, the prosecutor obtained the recordings of the phone calls right away after McGuire alerted him to their existence. However, there is no explanation as to why the prosecutor could not, on his own, request phone logs and recordings, if any exist, directly from the Sheriff’s office without knowing for a fact that they exist.”
The court concluded: “We conclude that the State failed to exercise reasonable diligence in ascertaining whether unknown but discoverable evidence existed.”
This holding is particularly significant because it establishes that prosecutors cannot simply wait for evidence to come to them — they must affirmatively seek out discoverable materials in response to defense requests, even if they don’t know whether such materials exist.
Abuse of Discretion
Because the State violated Article 39.14, the trial court abused its discretion by admitting the recordings of the phone calls. The court applied the framework from State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005), finding that the trial court acted without reference to guiding rules or principles.
Harmless Error Analysis
Despite finding error, the court did not reverse the conviction. Instead, it concluded the error was harmless under Texas Rule of Appellate Procedure 44.2(b).
Standard for Non-Constitutional Error
A violation of Article 39.14 is statutory (non-constitutional) error. For such errors, the appellate court must determine whether the error affected a substantial right of the defendant — specifically, whether the error had a substantial or injurious effect on the jury verdict.
Harm Analysis Factors
The court examined several non-exclusive factors established in Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023):
1. Character of the Error and Connection to Other Evidence
The court found this factor weighed strongly against harm. In the phone calls, Moten “did not admit guilt or say anything overtly incriminating.” Instead, he:
- Told McGuire not to say anything
- Asked if she was on his side
- Told her that he loved her
- Offered to send her money
The court concluded: “The statements made in the phone calls had no bearing on the facts of consequence in the case, whether Moten stabbed Harris.”
2. Nature of Evidence Supporting the Verdict / Other Evidence of Guilt
The court found overwhelming evidence of guilt beyond the challenged phone calls:
- Victim’s Testimony: Harris survived the attack and testified that Moten stabbed him
- Eyewitness Accounts: Multiple witnesses testified that Moten instigated the fight outside the bar
- Location Evidence: No one else was nearby when Harris was stabbed
- Confession: Gabriel Judge, Moten’s co-worker, testified that Moten confessed to the stabbing as soon as they drove away from the scene
- Medical Evidence: Testimony described Harris’s severe twelve-inch-long vertical laceration across his abdomen, along with photographs of the wound
The court concluded: “The jury could reasonably have found Moten guilty of aggravated assault with a deadly weapon. Given the strength of the inculpatory evidence, these factors weigh against a finding of harm.”
3. Substantially Similar Evidence Admitted Without Objection
Significantly, McGuire testified about the contents of the jail calls without objection. Her testimony covered the same ground as the recordings themselves — that Moten asked if she would be on his side, told her not to say anything, offered money, and said he loved her. She also testified that Moten did not claim his co-worker Judge stabbed Harris or deny his own involvement.
The court applied the principle from Cook that “erroneous admission of evidence will not result in reversal when other such evidence was received without objection either before or after the complained-of ruling.”
4. State’s Emphasis of the Complained-Of Error
The State did not mention the jail phone calls in either its opening or closing arguments. The calls only came up when defense counsel mentioned them in closing argument. The State responded in rebuttal, arguing that “it was not reasonable that an innocent man would call McGuire and tell her not to say anything, assert that he wants her on his side, and offer to send her money.”
The court found this factor weighed “slightly in favor of finding harm,” but not enough to overcome the other factors pointing toward harmlessness.
Prosecutor Discovery Obligations Texas
Reviewing the entire record, the court concluded it was “unable to say that the trial court’s admission of the jail phone calls affected Moten’s substantial rights.” The erroneous admission was therefore harmless error, and the court affirmed the conviction.
The Scope of “The State’s Possession:” Beyond the Prosecutor’s Actual Knowledge
The assertion that requested evidence is not “in the possession” of the District Attorney’s Office is insufficient under State v. Heath and Moten v. State. In Heath, the Court of Criminal Appeals held that “the state” under Article 39.14(a) means the State of Texas, which “includes prosecutors and law enforcement.” Heath, 715 S.W.3d at 2. The Court rejected any construction limiting “the state” to the individual prosecutor or district attorney’s office, holding instead that Article 39.14’s reference to materials “in the possession, custody, or control of the state” encompasses all evidence held by law enforcement agencies, regardless of the prosecutor’s actual knowledge of its existence. Id. at 21-26. The Court emphasized that Article 39.14(a) “does not speak to the prosecution’s state of mind, nor does it contain any mens rea limitation,” and that “the focus of the statute is on the State’s obligation and ability to disclose evidence in the State’s possession, not whether a specific prosecutor knew that law enforcement had the evidence in its possession.” Id. at 21-22.
Moten extends this principle to third-party vendors operating under contract with governmental entities. The Court held that evidence possessed by Securus — a private company contracted to provide jail telephone services — falls within “the possession, custody, or control of the state” under Article 39.14(a). The Court reasoned that because the jail exercises control over the vendor’s services and the recordings are made pursuant to governmental authority, such evidence must be produced upon timely request. This construction aligns with Article 39.14(a)’s express language requiring disclosure of evidence “in the possession, custody, or control of the state or any person under contract with the state.”
These holdings impose an affirmative duty of inquiry. The prosecutor must exercise “reasonable diligence to ascertain what discoverable evidence is at [the State’s] disposal.” Heath, 715 S.W.3d at 38. As the Court explained, “as soon as practicable” means “as soon as reasonably possible” and requires that prosecutors determine what evidence law enforcement and contracted vendors possess. Id. at 36-37. The duty arises immediately upon receipt of a timely discovery request, not when the prosecutor subsequently learns of evidence during trial preparation. Id. at 36-38.
The practical import is that prosecutors must affirmatively inquire with investigating agencies and relevant third-party contractors to identify discoverable materials. Where evidence can be obtained through reasonable inquiry — such as requesting jail call recordings from a contracted vendor or body camera footage from law enforcement — disclosure is “practicable” under the statute regardless of whether the prosecutor previously knew such evidence existed. The failure to make such inquiries constitutes a violation of Article 39.14(a)’s timeliness requirement, and lack of actual knowledge does not excuse noncompliance. See Heath, 715 S.W.3d at 39 (“[O]nce discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it in a timely manner.”).
Implications and Analysis
Practical Impact on Prosecutors
This decision places clear obligations on prosecutors in Texas:
- Proactive Discovery Duties: Prosecutors cannot adopt a passive approach to discovery. When defendants request recordings of statements, prosecutors must affirmatively search for such materials.
- Jail Call Protocols: Prosecutors should establish routine procedures to request and review jail call logs and recordings for defendants, particularly those who have filed discovery requests.
- Third-Party Vendors: The fact that evidence is maintained by contractors does not excuse the State’s discovery obligations. Prosecutors must ensure they can access materials held by vendors under contract with law enforcement.
- Timing: Seven months from discovery request to trial was more than sufficient time to identify and produce jail call recordings. The “as soon as practicable” standard requires diligence throughout the pretrial period, not last-minute scrambles.
Defense Considerations
For defense attorneys, this case provides:
- Strong Precedent: Clear authority that prosecutors must search for jail calls in response to discovery requests, not wait until they happen to learn about them.
- Remedy on Appeal Limitations: However, the case also illustrates that discovery violations may be found harmless, particularly when:
- The improperly disclosed evidence is not highly incriminating
- Similar evidence comes in without objection
- Other evidence of guilt is overwhelming
- The State makes minimal use of the evidence
- Strategic Responses: Defense counsel might consider:
- Moving to exclude the evidence entirely
- Seeking continuances when late-disclosed evidence emerges
Broader Context: The Heath Framework
The court’s decision applies the framework established in State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), which significantly expanded prosecutors’ discovery obligations. The Heath court emphasized that Article 39.14’s amendments were designed to remove procedural hurdles and expand disclosure requirements.
The Moten decision shows how appellate courts are applying Heath‘s principles in specific contexts. The affirmative duty to search for evidence means prosecutors can no longer claim ignorance as an excuse for non-disclosure when reasonable diligence would have uncovered the evidence.
The Harmless Error Safety Valve
While the court found a clear discovery violation, the harmless error analysis allowed it to affirm the conviction. This reflects a balance in Texas appellate jurisprudence between enforcing procedural rights and avoiding reversal of convictions when errors did not affect the outcome.
The factors that made the error harmless here were:
- Content of the Evidence: The calls contained no confession or direct admission
- Duplicative Nature: Similar testimony came in without objection
- Strength of Other Evidence: Overwhelming independent proof of guilt
- Minimal Emphasis: State barely mentioned the calls
Defense attorneys should note that these factors might not be present in other cases. Where improperly disclosed evidence is more incriminating, is the only source of certain information, or receives heavy emphasis, reversal might be more likely.
Key Takeaways
Moten v. State clarifies that Texas prosecutors have affirmative duties to search for and disclose jail call recordings in response to discovery requests. The State cannot hide behind third-party storage arrangements or claim ignorance when reasonable diligence would have uncovered the evidence.
The case serves as both a warning to prosecutors about their discovery obligations and a reminder to defense counsel that establishing error alone may not be sufficient for appellate relief. The ultimate question remains whether the error affected the defendant’s substantial rights, which requires a careful examination of the entire trial record.
Going forward, Texas prosecutors should implement systematic procedures to identify and disclose jail communications, particularly in jurisdictions where such recordings are routinely made. The “as soon as practicable” standard, combined with the affirmative duty to search articulated in Heath and applied here, leaves little room for delayed disclosure absent extraordinary circumstances. If further cements the expectations surrounding prosecutor discovery obligations, requiring diligence and accountabilty across every state of the process.
