Trials are like a game of chess. The best attorneys are always thinking several moves ahead. In every case that goes to trial, we are not just preparing our arguments for the judge and jury. We are anticipating the prosecution’s every move and creating a record that maximizes our chances of victory – not just at the trial level but at the appellate level if we don’t win Round One. That’s exactly how our trial warriors got the Second Court of Criminal Appeals to reverse a life sentence – twice.
To set the stage, it is important to understand that, from the moment we get a case, we know it could someday result in a trial by jury. One of the first things we do is to make a request for the State’s discovery. In theory, we should get everything the prosecutors have that’s not their work product. Work product should be limited to just thoughts they have jotted down about the case, trial strategy, etc. Discovery generally includes witness statements, videos, audio recordings, forensic reports, lab reports, offense reports, and the like.
The right to discovery in criminal cases has been upheld throughout the years by the United States Supreme Court in decisions like Brady v. Maryland and Giglio v. United States. However, prior to 2014, it was difficult for the defense to obtain materials from prosecutors in a timely fashion.
Today, one of the primary statutes in Texas that governs the discovery process is the Code of Criminal Procedure Article 39.14, which was heavily amended after Michael Morton was wrongfully convicted and spent 25 years in prison before being exonerated by DNA. The “Michael Morton Act” was unanimously enacted in 2014 by the legislature to ensure individuals accused of crimes have sufficient time to analyze the alleged evidence against them and to prevent trial by deception or trial by ambush. Article 39.14 now requires prosecutors to turn over all evidence excluding work product “as soon as practicable” upon a request by the defense attorney. Neither a hearing or court order is necessary for discovery to be mandated
In 2018, two of our senior attorneys, Letty Martinez and Christy Jack, went to trial on one of the most serious charges in the state of Texas. Our client, Robert Hallman, was charged with continuous sexual abuse of two children. He was acquitted of that charge but convicted of a lesser charge involving only one.
In the years leading up to Hallman’s trial, prosecutors failed to disclose 13 pages of discovery to the defense, despite multiple hearings involving discovery compliance. In fact, the 13 pages were not disclosed until the second day of the punishment phase of trial. Our attorneys appropriately made a request for a mistrial based on the violation of Article 39.14 of the Code of Criminal Procedure and the prosecutor’s failure to turn evidence over to the defense. The motion for a mistrial was denied and Hallman was sentenced to life in prison.
The appeal went to the Second Court of Appeals in Fort Worth. The appellate lawyer, Lisa Mullen, argued that the evidence the state failed to turn over included a statement that called the credibility of a key witness into question – a case that hinged on the credibility of that witnesses. During the trial, in our request for a mistrial, Jack argued that the evidence withheld by the state included crucial statements made by key witnesses in the case which were inconsistent with the testimony they gave in court. Jack pointed out that the defense had made many strategic decisions based discovery provided by the state prior to trial.
In response to Jack’s argument, the prosecutor complained the defense had asked for “numerous things” and that she was “trying to comply and give them everything that [she] possibly [could]” even while acknowledging there had been multiple discovery hearings in the months leading up to trial.
In their initial review of the case, the Second Court of Appeals noted numerous instances leading up to trial when the state was less than forthcoming with evidence.
To determine if the state failed to comply with Brady, the Court of Appeals applied the three-prong test developed under Brady v. Maryland. That is, whether:
(1) the prosecution failed to disclose evidence, regardless of the prosecution’s good or bad faith;
(2) the withheld evidence was favorable to the accused; and
(3) that there is a reasonable probability that had the evidence been disclosed, the trial’s outcome would have been different.
The Second Court of Appeals ruled that prosecutors violated all three prongs. They noted that Article 39.14 creates a general, continuous duty by the State to disclose before, during, or after trial any discovery evidence that tends to negate the defendant’s guilt or to reduce the punishment he could receive. Furthermore, prosecutors have a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.
The court found Tarrant County prosecutors violated “Brady” and violated Article 39.14 by failing to disclose to the defense written statements made by a key witness that drew that witness’ testimony into question. The court found the withheld evidence would have been sufficient to undermine the confidence in the jury’s verdict and reversed the judgment, remanding the case for a new trial on the only remaining complainant.
As expected, the prosecution appealed the Second Court’s ruling to the Texas Court of Criminal Appeals, the state’s highest court for criminal cases. Upon review, the high court ordered the Second Court of Criminal Appeals to re-evaluate the case in light of new case law, Watkins v. State. Specifically, they asked the appeals court to evaluate whether the evidence prosecutors failed to turn over was “material.”
The Second Court of Appeals re-evaluated the case and, on June 16, 2022, reversed and remanded the case for a new trial – for the second time.
You can read their 77-page published opinion here, as well as their original opinion: