IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0156-22

STATE OF TEXAS

v.

DWAYNE ROBERT HEATH, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

MCLENNAN COUNTY

NEWELL, J., delivered the opinion of the Court in which HERVEY,

RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined. KEEL, J., filed 

a dissenting opinion in which KELLER, P.J., and YEARY, J., joined.

Does the mandate in Article 39.14(a) of the Texas Code of Criminal 

Procedure that the “the state” produce discovery “as soon as practicable after 

receiving a timely request” include discoverable items which, unbeknownst to 

the prosecuting attorney, are in the possession of law enforcement agencies? 
Heath – 2

Yes. In this context, “the state” means the State of Texas and includes 

prosecutors and law enforcement. “As soon as practicable” as the phrase 

appears in Article 39.14(a) means as soon as reasonably possible and does 

not contain a knowledge requirement on behalf of the prosecution. Thus, 

items discoverable under Article 39.14(a) that are in the possession of law 

enforcement must be produced as soon as practicable after the State’s receipt 

of a timely request for discovery.0F

1 This case also requires us to consider 

whether a trial court has the authority to exclude evidence that was not timely

disclosed by the State absent a showing of bad faith or prejudice. We agree 

with the court of appeals that under the circumstances of this case the trial 

court had the authority to exclude the evidence at issue. Accordingly, we

affirm the judgment of the court of appeals.

Background

Appellee was indicted with the offense of injury to a child in 2016.1F

2 Trial 

counsel was appointed and several days later, on March 23, 2017, counsel

emailed a request for discovery to the District Attorney’s Office. The email 

read simply “[c]an I get discovery on this client?” and included the relevant 

1 Additionally, Article 39.14(h) creates an automatic duty for the state to disclose exculpatory, 

impeaching, or mitigating evidence that exists even if the defendant does not specifically 

request disclosure of such evidence. Tex. Code Crim. Proc. Ann. art. 39.14(h). In this case, 

as will be explained in greater detail below, Appellee only argues that the State violated Article 

39.14(a).

2 Tex. Penal Code Ann. § 22.04(a)(3).
Heath – 3

cause number.2F

3 Thereafter, the State provided discovery to the defense which

included law enforcement records, child protective services records, and 

photographs.3F

4 

The case was placed on the trial docket. At three different jury trial 

settings the State announced “ready” for trial,4F

5 but the case was reset each 

time apparently because another case went to trial. Appellee’s case was finally

set to proceed to trial on May 29, 2018, the case’s fourth jury trial setting.5F

6 

Six days before the fourth jury trial setting, the prosecutor learned of 

the existence of a 911 call placed by the complainant’s mother on the date of 

the alleged offense. The prosecutor emailed Appellee’s counsel that additional 

discovery was available. Two days later, Appellee filed a pre-trial application 

for a writ of habeas corpus and motion to suppress the 911 call alleging that 

the evidence was improperly withheld in violation of Article 39.14 of the Code 

of Criminal Procedure and various constitutional provisions.6F

7

3 The State did not argue to the trial court or on appeal that this request was insufficiently

detailed to trigger the prosecutor’s duty to provide discovery under the statute. We assume 

without deciding that it was sufficient.

4 The trial court’s findings of fact indicate that discovery was provided sometime before July 

20, 2017.

5 The parties appeared for trial on October 16, 2017, January 22, 2018, and February 26, 

2018.

6 A pretrial motions hearing was set for May 11, 2018, and a status conference was set for 

May 18, 2018.

7 Appellee also argued that the recording of the 911 call was improperly withheld under the 

Sixth, Ninth, and Fourteenth Amendments of the United States Constitution, and Article 1, 

sec. 10 and 19 of the Texas Constitution. 
Heath – 4

The trial court held a hearing on Appellee’s motion to suppress the 

morning of trial. Appellee argued the 911 call, which was made available to 

him six days prior to trial and fourteen months after his initial discovery 

request, should be excluded based upon a violation of the Michael Morton Act, 

which requires discovery in the possession, custody, or control of the state be 

provided as soon as practicable upon request.7F

8 He argued that “the state,”

as the term is used in Article 39.14, encompasses law enforcement, and thus, 

includes the Sheriff’s Office’s dispatch, who had been in possession of the 911 

call since 2016. 

The prosecutor responded that the District Attorney’s Office was 

unaware of the 911 call’s existence because the police report only referenced 

a “call for service” that was answered by a deputy. The prosecutor advised 

the trial court that she learned of the 911 call when she met with the 

complainant’s mother who told her that she had called 911 on the date of the 

alleged offense. The prosecutor further explained that she requested a copy 

of the recording a few days after speaking with the complainant’s mother and 

provided it to Appellee’s counsel as soon as she received it. Therefore, the 

prosecutor argued, there was no violation of the Michael Morton Act. 

The prosecutor also argued that because there had been no showing of 

bad faith by the State, the appropriate remedy for the delayed disclosure 

8 Michael Morton Act, Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.
Heath – 5

would be to grant a continuance to give the defense more time to review the 

evidence rather than to exclude the evidence.8F

9 Appellee stated he was not 

asking for more time. Appellee argued that bad faith was not required under

Article 39.14(a), as amended by the Michael Morton Act, because it only 

requires that “the state,” which includes law enforcement, provide discovery 

“as soon as practicable.”9F

10 Appellee did not allege that the prosecutor had 

acted in bad faith but instead argued that the recording had been in the 

possession of “the state” since 2016 and was requested fourteen months prior, 

making the disclosure untimely. The prosecutor responded that “as soon as 

practicable” means as soon as the prosecution becomes aware of evidence. 

After considering the arguments of counsel, the trial court rejected the 

State’s argument for a continuance10F

11 and granted Appellee’s motion to 

exclude the 911 call. Appellee announced he was ready for trial. Rather than 

proceed to trial, the trial court granted the State’s unopposed request for a 

9 At the evidentiary hearing, Appellee specified that he was not requesting a continuance and 

when the State asserted it did not want to proceed without the 911 call, the trial court 

responded that it would not grant the State’s request for a continuance.

10 Tex. Code Crim. Proc. Ann. art. 39.14(a).

11 The State did not file a sworn, written motion for a continuance. See Tex. Code Crim. Proc. 

Ann. art. 29.03 (“A criminal action may be continued on the written motion of the State or of 

the defendant, upon sufficient cause shown; which cause shall be fully set forth in the 

motion.”); Tex. Code Crim. Proc. Ann. art. 29.08 (“All motions for continuance must be sworn 

to by a person having personal knowledge of the facts relied upon for the continuance.”). In 

cases in which a defendant appeals the denial of an oral motion for continuance, we have held 

that the failure to file a written motion for continuance forfeits any claim on appeal. Anderson 

v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009) (“Thus, if a party makes an unsworn 

oral motion for continuance and the trial judge denies it, the party forfeits the right to 

complain about the judge’s ruling on appeal.”). 
Heath – 6

stay of the proceedings so that the State could appeal the trial court’s ruling

excluding the evidence of the 911 call.

At the State’s request, the trial court entered written findings of fact and 

conclusions of law. The trial court made the following findings of fact:

• A 911 call was made on or about November 5, 2016, regarding 

this alleged offense. Law enforcement has maintained a 

recording of this 911 call since it was made.

• Defendant requested discovery from the Office of the Criminal 

District Attorney of McLennan County on March 20, 2017. 

• The District Attorney provided discovery to Defendant 

sometime before July 20, 2017, that consisted of written 

reports and photographs. The written reports make no 

reference to a 911 call. 

• The District Attorney failed to ascertain the existence of the 

911 recording by the first pretrial setting on September 29, 

2017.

• The District Attorney failed to ascertain the existence of the 

911 recording for the settings on October 6, 2017, October 16, 

2017, January 5, 2018, January 12, 2018, January 22, 2018, 

February 9, 2018, February 16, 2018, February 26, 2018, May 

11, 2018, and May 18, 2018.

• A member of the District Attorney’s office met with a witness 

or witnesses on or about May 18, 2018, and first learned that 

a call to 911 had been made. The prosecutor promptly

requested a recording of this call from the McLennan County 

Sheriff’s Department.

• The District Attorney emailed defense counsel on May 23, 

2018, that additional discovery was available. This additional 

discovery was a copy of the 911 call.

• Defense counsel obtained this additional discovery on or about 

May 23, 2018.
Heath – 7

• The case was set, and all parties were ready for trial by jury to 

begin May 29, 2018.

The trial court made the following conclusions of law:

• The 911 recording at issue is evidence subject to disclosure 

under Article 39.14(a).

• The State’s duty of disclosure extends to discoverable items 

“that are in the possession, custody, or control of the state or 

any person under contract with the state.”

• Under Article 39.14, items in possession of the State include 

items in possession of law enforcement agencies. 

• A District Attorney has “a specific duty . . . to ascertain what 

evidence within the terms of [Article 39.14 is] held by the police 

and to make such evidence available to the defense.”

• A District Attorney has a statutory duty to provide all relevant 

discovery “as soon as practicable after receiving a timely 

request from the defendant.”

• When Defendant requested discovery on March 20, 2017, this 

commenced a “specific duty” on the District Attorney’s part to 

ascertain what discoverable evidence was held by the Sheriff’s 

department and disclose it “as soon as practicable.”

• Under the facts of this case, the District Attorney’s failure to 

disclose the 911 recording until the week before trial (more 

than 18 months after an agency of the State first took 

possession of the recording and more than 14 months after 

discovery was requested) constitutes a violation of the duty 

imposed by the plain language of Article 39.14(a) that “as soon 

as practicable” “the state shall produce.”

• Because the District Attorney failed to comply with Article 

39.14(a), the recording is excluded from the evidence.

Appeal
Heath – 8

The State appealed.11F

12 The State argued that the trial court misapplied 

the remedy for a violation of Article 39.14 because there was no showing of a 

willful violation by the State. According to the State, the appropriate remedy 

should have been a continuance rather than excluding the evidence. The court 

of appeals did not reach that issue, however. Instead, the court of appeals 

held that the trial court abused its discretion to exclude the 911 call because

defense counsel’s email requesting discovery was not sufficient to trigger the 

requirements of Article 39.14(a).12F

13 The court of appeals reasoned that 

because counsel’s email did not refer to Article 39.14 or specify any items 

sought to be produced by the State, it did not require the State to comply with 

Article 39.14.13F

14 

Appellee sought discretionary review before this Court challenging the 

court of appeals’ conclusion on several grounds. We held that the court of 

appeals erred to address an issue not presented to the trial court or raised by 

the parties on appeal.14F

15 The State had not argued before the trial or appellate 

12 Tex. Code Crim. Proc. Ann. art. 44.01(a)(5)(“ The state is entitled to appeal an order of a 

court in a criminal case if the order: (5) grants a motion to suppress evidence, a confession, 

or an admission, if jeopardy has not attached in the case and if the prosecuting attorney 

certifies to the trial court that the appeal is not taken for the purpose of delay and that the 

evidence, confession, or admission is of substantial importance in the case[.]”).

13 State v. Heath, 582 S.W.3d 495, 497 (Tex. App. – Waco 2018).

14 Heath, 582 S.W.3d at 497.

15 State v. Heath, PD-0012-19, 2019 WL 6909439, at *2 (Tex. Crim. App. 2019) (not 

designated for publication) (“Generally, ‘appellate courts are free to review ‘unassigned error’ 

– a claim that was preserved in the trial court below but was not raised on appeal.’ However, 

errors that are subject to procedural default may not be remedied by the appellate court as 

unassigned error unless the error was in fact preserved in the trial court.”) (citing Sanchez v. 
Heath – 9

court that counsel’s discovery request was inadequate or failed to trigger its 

duty under Article 39.14.15F

16 Thus, we held the issue was not preserved and 

the court of appeals erred to reach an unassigned error that was subject to 

procedural default.16F

17 We reversed and remanded the case to the lower court 

for a resolution of the issues raised by the State.17F

18

On remand, the court of appeals affirmed the trial court’s order granting 

the motion to suppress.18F

19 The court reasoned that the legislative 

amendments to Article 39.14 substantively changed the process for discovery 

disclosures and, as a result, “once 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.”19F

20 The court of appeals further stated that “a failure to at least 

inquire about the existence of discoverable items in response to a proper 

request in a timely manner is all the evidence necessary to show that the 

failure to timely produce the item in discovery was due to what was previously 

characterized as a ‘willful violation’ or ‘bad faith.’” 20F

21 According to the court of 

State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (quoting Pena v. State, 191 S.W.3d 133, 

136 (Tex. Crim. App. 2006)).

16 Id. 

17 Id. 

18 Id.

19 State v. Heath, 642 S.W.3d 591, 593 (Tex. App. – Waco 2022).

20 Id. at 597.

21 Id.
Heath – 10

appeals there was “no dispute that the 911 call was in the possession of the 

State, which is not limited to the prosecutor, but includes law enforcement 

and related agencies.”21F

22 The court went on to explain, “[t]he prosecutor need 

not know what it is that is not being produced, but the failure to even look to 

see if there is something responsive to the request in light of the duty to 

search out responsive discovery is adequate for the trial court to fashion a 

remedy appropriate to the situation.”22F

23 The court of appeals also held the 

trial court’s remedy of excluding the recording was not an abuse of discretion 

considering the State was presumably ready to proceed to trial without the 

911 call at three prior jury trial settings.23F

24 The court of appeals concluded

that this was an appropriate sanction for the failure to timely produce the 

recording and affirmed the trial court’s granting of Appellee’s motion to 

suppress.24F

25

Discretionary Review

The State now seeks discretionary review, and in two issues, asks this 

Court to determine: 

1. Has the State’s statutory duty to disclose evidence “as soon as 

practicable” been violated if the prosecutor fails to disclose an item of 

evidence the D.A.’s Office does not know exists but that has been in 

police custody for months?

22 Id. at 595 (“The parties further do not dispute that the recording was required to be 

produced because it was ‘material’ as required in article 39.14(a).”). 

23 Id. at 597.

24 Id.

25 Id. at 598.
Heath – 11

2. If so, does the trial court have authority to impose an exclusionary 

sanction when there has been no bad faith or demonstrable prejudice to 

the opposing party and the statute provides for no such sanction?

The State argues, as it did before the trial court, that Article 39.14(a)’s 

directive to produce discovery “as soon as practicable” applies only to items 

in the prosecutor’s possession, custody, or control, which does not extend to 

what is in the exclusive possession, custody, or control of law enforcement 

agencies. Although the State did not argue on appeal that the word “state” 

in Article 39.14(a) does not include law enforcement agencies, it contends 

that the court of appeals nevertheless erred to conclude that the issue was 

not disputed because it was disputed before the trial court and therefore, was

preserved for a merits determination by this Court.25F

26 

The State argues on discretionary review that the term “state” in Article 

39.14(a) is most reasonably interpreted to mean the prosecuting attorney.

According to the State, the Michael Morton Act definitively established that 

“the state” does not include law enforcement because the Legislature replaced

“agencies” in the phrase “in the possession, custody, or control of the state or 

any of its agencies” with “any person under contract with the state.”26F

27 The 

26 Id. at 595 (“There is no dispute that the 9-1-1 recording was in the possession of the State, 

which is not limited to the prosecutor, but includes law enforcement and related agencies.”). 

The State argues the issue was preserved in the trial court by the prosecutor’s argument that 

Article 39.14 only required the 911 call to be disclosed when it came into the prosecution’s 

possession or control.

27 Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.
Heath – 12

State further argues that even if Article 39.14 applies to evidence in law 

enforcement’s possession, the trial court lacked authority to impose an 

exclusionary remedy because there was no bad faith on the part of the State,

nor was Appellee prejudiced by the late disclosure. 

Appellee contends that Article 39.14(a) extends to law enforcement 

agencies because the State has constructive possession of items possessed 

by State agencies. According to Appellee, Article 39.14(a) imposes a duty on 

the prosecutor to ascertain discoverable matters in the possession of law 

enforcement agencies “as soon as practicable.” Appellee further argues that 

the State’s interpretation would render Article 39.14’s reference to “counsel 

for the state” meaningless and in turn, would undermine the legislative intent

behind the statute.27F

28 Appellee continues that the Legislature removed the 

phrase “of any of its agencies” in order to remove statutory surplusage; since 

items in the possession of State agencies are also in the constructive 

possession of the State, the items are therefore subject to the State’s control. 

Finally, Appellee maintains that the trial court had common law or inherent 

authority to exclude the 911 call based on an implied finding of willful 

misconduct which, Appellee concedes, is required for an exclusion of evidence 

based on a discovery violation. Appellee points to the State’s announcements 

of ready for trial on four occasions and the length of time that “the state”

28 Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 13

possessed the recording as evidence of implied willful misconduct on behalf of 

the prosecutor. 

Standard of Review

We review a trial court’s decision to exclude evidence under an abuse of 

discretion standard.28F

29 A trial court abuses its discretion if its decision lies 

outside of the zone of reasonable disagreement.29F

30 An appellate court may 

not substitute its own decision for that of the trial court.30F

31 As long as a trial 

court’s evidentiary ruling is within the zone of reasonable disagreement, this 

Court will not intercede.31F

32

In reviewing a trial court’s ruling on a motion to suppress, we apply a 

bifurcated standard of review that gives almost total deference to the trial 

court’s determination of historical facts that the record supports and consider 

de novo the application of the law to the facts.32F

33 We defer to the trial court’s 

findings unless they are unsupported by the record and view the evidence in 

the light most favorable to the trial court’s ruling.33F

34 We also afford almost 

29 Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014) (citing Oprean v. State, 201 

S.W.3d 724, 727 (Tex. Crim. App. 2006) (“When reviewing a trial judge’s decision to admit 

or exclude evidence, an appellate court must determine whether the judge’s decision was an 

abuse of discretion.”)).

30 Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).

31 Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). 

32 Lopez, 86 S.W.3d at 230.

33 State v. Cortez, 548 S.W.3d 198, 203 (Tex. Crim. App. 2018).

34 State v. Johnson, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).
Heath – 14

total deference to the trial judge's rulings on mixed questions of law and 

fact when the resolution of those questions depends upon an evaluation 

of credibility and demeanor.34F

35 We review de novo mixed questions of 

law and fact that do not depend on an evaluation of credibility and 

demeanor.35F

36 The trial court’s ruling on a motion to suppress will be reversed 

only if it is arbitrary, unreasonable, or outside the zone of reasonable 

disagreement.36F

37

Though the record is not as well developed as it could have been, the 

material facts are undisputed.37F

38 Shortly after appointment, Appellee’s counsel 

requested discovery in Appellee’s case. Neither party disputes that the 911 

call fell under that discovery request. However, the 911 call was not 

specifically referenced in the records turned over to the State and produced 

to the defense. The State learned of the 911 call just before the fourth trial 

setting during a witness interview after having announced ready for trial on 

three prior occasions. The State promptly requested a copy of the call and 

turned it over to the defense six days before trial. Appellee asked the trial 

35 Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).

36 Id. 

37 Cortez, 548 S.W.3d at 203. 

38 Heath, 642 S.W.3d at 593 n. 3 (noting that the record of the hearing where the prosecutor 

set forth what efforts were taken to ascertain what evidence was in the State’s possession 

was not thorough and that the result might have been different had the prosecutor established 

what she had done to find what evidence was in the State’s possession prior to May of 2018). 

Indeed, the record does not contain a copy of a recording of the 911 tape at the center of the 

dispute.
Heath – 15

court to suppress the recording in light of the discovery violation, he did not 

seek a continuance or otherwise argue he had been prejudiced by the untimely 

disclosure. 

The trial court’s decision to grant Appellee’s motion to suppress the 911 

call requires us to interpret Article 39.14. Statutory construction is a question 

of law that we review de novo.38F

39 When interpreting statutes, we seek to 

effectuate the collective intent or purpose of the legislators who enacted the 

legislation.39F

40 Legislative intent isn’t the law, but discerning legislative intent 

isn’t the end goal, either.40F

41 Rather, the end goal is interpreting the text of 

the statute.41F

42 In so doing, we necessarily focus our attention on the literal 

text of the statute in question and attempt to discern the fair, objective 

meaning of the text at the time of its enactment.42F

43 

In interpreting the text of a statute, we must presume that every word 

has been used for a purpose and that each word, phrase, clause, and sentence 

should be given effect if possible.43F

44 We do not focus solely upon a discrete 

provision; we look at other statutory provisions as well to harmonize 

39 Watkins v. State, 619 S.W.3d 265, 273 (Tex. Crim. App. 2021).

40 Boykin v. State, 818 S.W.3d 782, 785 (Tex. Crim. App. 1985). 

41 Watkins, 619 S.W.3d at 272.

42 Id. 

43 Boykin, 818 S.W.3d at 785.

44 State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).
Heath – 16

provisions and avoid conflicts.44F

45 When dealing with the passage of a particular 

act, such as the one at issue here, we look to the entire act in determining the 

legislature’s intent with respect to a specific provision.45F

46 We construe an 

amended statute as if it had originally been enacted in its amended form, 

mindful that the legislature, by amending the statute, may have altered or 

clarified the meaning of earlier provisions.46F

47 When a particular term is not 

legislatively defined but has acquired a technical meaning, we construe that 

term in its technical sense.47F

48 We may also consult standard or legal 

dictionaries in determining the fair, objective meaning of undefined statutory 

terms, and legal dictionaries to determine the meaning of undefined legal 

terms.48F

49

Analysis

Prior to 1965, no Texas statute provided for discovery or authorized trial 

judges in criminal proceedings to order the State to produce or permit for 

45 See, e.g., Murray v. State, 302 S.W.3d 874, 877-79 (Tex. Crim. App. 2009) (interpreting 

the phrase “included in the indictment” in Article 4.07 of the Code of Criminal Procedure after 

considering Articles 37.08 and 37.09 of the Code of Criminal Procedure).

46 See, e.g., Taylor v. Firemen’s & Policemen’s Civil Service, 616 S.W.2d 187, 190 (Tex. 

1981); see also Ex parte Woods, 52 Tex. Crim. 575, 108 S.W. 1171, 1176 (1908).

47 Powell v. Hocker, 516 S.W.3d 488, 493 (Tex. Crim. App. 2017); see also Mahaffey v. State, 

316 S.W.3d 633, 642 (Tex. Crim. App. 2010) (citing Getts v. State, 155 S.W.3d 153, 158 

(Tex. Crim. App. 2005)).

48 See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000). 

49 Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
Heath – 17

inspection items the State intended to use at trial.49F

50 This Court recognized 

the unfairness of that trial-by-fire system and welcomed a law concerning 

pretrial discovery.50F

51 With the enactment of the Code of Criminal Procedure in 

1965 came Article 39.14, which provided: 

Upon motion of the defendant showing good cause therefor and 

upon notice to the other parties, the court in which an action is 

pending may order the State before or during trial of a criminal 

action therein pending or on trial to produce and permit the 

inspection and copying or photographing by or on behalf of the 

defendant of any designated documents, paper, written statement 

of the defendant (except written statements of witness and except 

the work produce of counsel in the case and their investigators 

and their notes or report), books, accounts, letters, photographs, 

objects or tangible things not privileged, which constitute or

contain 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.51F

52

As we observed in Watkins v. State, the original version of Article 39.14 was 

patterned after its civil counterpart, Rule 167 of the Rules of Civil Procedure.52F

53 

We noted that one possible justification for this was that civil lawyers who 

were familiar with the civil discovery scheme would not have wanted to learn 

50 See, e.g., Lopez v. State, 252 S.W.2d 701, 705 (Tex. Crim. App. 1952) (finding no error in 

refusal to grant a motion to require the district attorney to allow the defendant to copy and 

inspect his confession and other evidence prior to trial noting, “[i]t has been the consistent 

holding of this Court, through the years, that such evidence, prior to its introduction in 

evidence, is not a public document and not subject to inspection of appellant prior to the 

moment it is offered”); Smith v. State, 240 S.W.2d 783, 786 (Tex. Crim. App. 1951) (“We 

know of no statutory requirement and no holding of this Court which would require that the 

prosecution present to the defense the written confessions and exhibits to be used in the 

prosecution.”).

51 Smith, 240 S.W.2d at 786 ( recognizing “the unfairness which sometimes confronts one on 

trial under such circumstances”).

52 Acts 1965, 59th Leg., R.S., ch. 722, Tex. Gen. Laws 317, 475. 

53 Watkins, 619 S.W.3d at 282.
Heath – 18

an entirely different system when representing indigent defendants.53F

54 We 

also set out the text of Rule 167. Comparison of Rule 167 to the original 

version of Article 39.14 reveals that Article 39.14 replaced references to a 

party ordered by a trial court to disclose evidence with “the State.”54F

55 

Article 39.14 remained untouched until 1999 when the preceding was 

cast as subsection (a), and subsection (b) was added to provide for the

reciprocal pretrial disclosure of expert witnesses upon notice and the filing of 

a motion.55F

56 At that time, subsection (b) provided: 

On motion of a party and on notice to the other parties, the court 

in which an action is pending may order one or more of the other 

parties to disclose to the party making the motion the name and 

address of each person the other may use at trial to present 

evidence under the Rules 702, 703, and 705, Texas Rules of 

Evidence [concerning expert witness testimony]. The court shall 

specify in the order the time and manner in which the other party 

must make the disclosure to the moving party, but in specifying 

the time in which the other party shall make the disclosure the 

court shall require the other party to make the disclosure not later 

than the 20th day before the date trial begins.

Until 2013, Article 39.14 consisted of these two subsections. Under these

earlier versions of the statute, this Court recognized that there was no general 

54 Id.

55 Id. at 282-83.

56 Act of June 18, 1999, 76th Leg., R.S., ch. 578, Tex. Gen. Laws, 3118, 3118. 
Heath – 19

right to discovery in Texas.56F

57 Likewise, there is no general right to discovery 

under the federal constitution.57F

58

In 2013, however, the Michael Morton Act “revamped Article 39.14

completely,” “overhaul[ed]” discovery in Texas, and “[o]n the whole” made 

“disclosure the rule and non-disclosure the exception” in Texas.58F

59 “According 

to the plain text of Article 39.14, criminal defendants now have a general 

statutory right to discovery in Texas beyond the guarantees of due process.”59F

60 

The Michael Morton Act is understood to have broadened the State’s discovery 

obligations.60F

61 This case calls for this Court to interpret Article 39.14, as 

amended by the Michael Morton Act, to determine whether the State violated

its duty to disclose evidence “as soon as practicable” when the evidence was 

possessed by a state law enforcement agency but not the prosecutor trying 

the case. 

Article 39.14(a) currently provides: 

Subject to the restrictions provided by Section 264.408, Family 

Code, and Article 39.15 of this Code, as soon as practicable after 

receiving a timely request from the defendant the state shall 

produce and permit the inspection and the electronic duplication, 

57 Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App. 1980) (“appellant does not have 

a general right to discovery of evidence in the possession of the State . . . Art. 39.14 makes 

it clear that the decision on what is discoverable is committed to the discretion of the trial 

court”) (internal citations omitted), abrogated on other grounds Ehrke v. State, 459 S.W.3d 

606 (Tex. Crim. App. 2015). 

58 Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

59 Tex. Code Crim Proc. Ann. art. 39.14(a); see Watkins, 619 S.W.3d at 277.

60 Watkins, 619 S.W.3d at 291. 

61 Id. at 278.
Heath – 20

copying, and photographing, by or on behalf of the defendant, of 

any offense reports, any designated documents, papers, written, 

or recorded statements of the defendant or a witness, including 

witness statements of law enforcement officers but not including 

the work product of counsel for the state in the case and their 

investigators and their notes or report, or any designated books, 

accounts, letters, photographs, or objects or other tangible things 

not otherwise privileged that constitute or contain 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. The state may provide to the defendant 

electronic duplicates of any documents or other information 

described by this article. The rights granted to the defendant 

under this article do not extend to written communication between 

the state and an agent, representative, or employee of the state. 

This article does not authorize the removal of the documents, 

items, or information from the possession of the state, and any 

inspection shall be in the presence of a representative of the 

state.61F

62

In relevant part, Article 39.14(a) imposes a duty upon the State to produce

discovery “as soon as practicable after receiving a timely request from the 

defendant” excluding “the work product of counsel for the state.”62F

63 The duty 

to disclose includes evidence “not otherwise privileged that constitute or 

contain 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.”63F

64 Previously, the statute required a motion showing good 

cause and a court order which commanded the State to produce “evidence 

material to any matter involved in the action and which are in the possession, 

62 Tex. Code Crim. Proc. Ann. art. 39.14(a).

63 Id.; see also Tex. Gov’t Code § 311.016(2) (“‘Shall’ imposes a duty.”).

64 Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 21

custody, or control of the State or any of its agencies.”64F

65 The statute has 

always explicitly excluded the State’s work product, consistent with its original 

civil counterpart.65F

66 

Here, the 911 call is evidence material to the action and is not the work 

product of counsel for the State or otherwise privileged.66F

67 Given that 

Appellee’s counsel sent a discovery request within three days of appointment

and there was no objection to the adequacy of that request, there is no dispute

before us regarding the adequacy or timeliness of the request.67F

68 Rather, the

parties dispute whether the State violated Article 39.14 by failing to produce

evidence that was in the possession of law enforcement but unknown to the 

prosecutor. To answer this question, we must consider the meaning of the

phrases “the state” and “as soon as practicable” as used in Article 39.14(a). 

As we explain in greater detail below, we hold that items in the 

possession, control, or custody of “the state,” include items in the possession 

of law enforcement. Moreover, the statute does not speak to the prosecution’s 

state of mind, nor does it contain any mens rea limitation. Rather, the focus 

of the statute is on the State’s obligation and ability to disclose evidence in 

65 Tex. Code Crim. Proc. Ann. art. 39.14(a) (2009).

66 Tex. Code Crim. Proc. Ann. art. 39.14(a).

67 Neither party introduced a copy of the 911 call into the record in this case. However, 

neither party appears to argue that it contains exculpatory evidence. We assume for the sake 

of resolving the issues in this case that the 911 call contains only inculpatory information.

68 See Heath, 2019 WL 6909439, at *2 (holding any complaint that the discovery request was 

inadequate under Article 39.14 was waived).
Heath – 22

the State’s possession, not whether a specific prosecutor knew that law 

enforcement had the evidence in its possession. 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. 

Who is “The State” for Purposes of Article 39.14?

As an initial matter, we must consider whether the State has preserved 

its argument that we should construe the term “state” in Article 39.14 to mean

“counsel for the state.”68F

69 On appeal, the State argued only that the trial court 

abused its discretion to exclude the 911 call absent a showing that the 

prosecutor acted willfully in failing to provide discovery. The State did not 

argue that it is only obligated to turn over evidence in the prosecutor’s 

possession, custody, or control.69F

70 On remand, the court of appeals held that 

the trial court acted within its discretion to exclude the call, noting “[t]here is 

no dispute that the 9-1-1 recording was in the possession of the State, which 

is not limited to the prosecutor, but includes law enforcement and related 

agencies.”70F

71 On discretionary review, the State challenges this conclusion 

arguing “the state” means the prosecutor and the call was disclosed when it 

69 Tex. R. App. P. 33.1(a)(1).

70 Indeed, the State conceded at oral argument before this Court on Appellee’s petition for 

discretionary review that the amendments to Article 39.14 extended its reach to all state 

agents not just the prosecutor. 

71 Heath, 642 S.W.3d at 595. 
Heath – 23

became available to the prosecutor. The State contends it preserved this issue 

at trial by arguing “as soon as practicable” means when the State becomes 

aware of the evidence. 

We agree with the State that it preserved the issue of whether “the 

state” in Article 39.14 encompasses law enforcement.71F

72 Even though it did 

not raise the argument on appeal until its petition for discretionary review, the 

State argued before the trial court that Article 39.14 only applied to 

prosecutors. We granted review to consider the court of appeals’ decision on 

this issue and Appellee does not challenge the State’s preservation argument

before us. Having determined the issue is properly before us, we now turn to 

the meaning of “state” in Article 39.14.

Article 39.14’s use of the word “state” means exactly what one would 

think it means—the “State of Texas.” And while the statutory reference to the 

State of Texas necessarily includes the prosecutor as a representative of “the 

state” just as a reference to the “defendant” necessarily includes a reference 

to the defendant’s representative, by itself, the word “state” refers to the State 

of Texas as a party to the lawsuit. It is not limited to the prosecutor trying 

the case. Where the statute limits the word’s applicability to a particular 

representative or agent of the State of Texas, it specifically does so. Any

general reference to the “state” refers to the State of Texas in its broadest 

72 Tex. R. App. P. 33.1; see Sanchez, 209 S.W.3d at 121 (“appellate courts are free to review 

‘unassigned error’ – a claim that was preserved in the trial below but was not raised on 

appeal”).
Heath – 24

sense. And in doing so, it places a duty to disclose evidence upon the 

prosecutor as well as law enforcement. 

This interpretation best harmonizes the statute’s multiple different uses 

of the word “state,” as well as the multiple instances in which the word “state” 

is modified to specifically refer to a person acting on behalf of the State. This

interpretation is consistent with the original version of Article 39.14’s 

substitution of the word “State” for the word “party” in the original civil 

discovery counterpart. It is also consistent with Article 39.14’s later use of 

the phrase “counsel for the state.”72F

73 By later modifying the word “state” with 

a specific reference to “counsel,” the text clearly uses the word “state” as a 

reference to the State of Texas as a party to the lawsuit. 

Moreover, the Legislature’s use of the phrase “counsel for the state” to

exclude work product from the State’s discovery obligations would make little 

sense if we were to construe “state” as limited only to the prosecutor.73F

74 This 

would effectively require us to read the statute to say, “but not including the 

work product of counsel for counsel in the case.” Further, Article 39.14 has 

always contained an exception from discovery for “the work product of counsel 

in the case,” but the Michael Morton Act modified “counsel” with the words 

73 Tex. Code Crim. Proc. Ann. art. 39.14(a) (excluding from discovery the “work product of 

counsel for the state”).

74 Id.
Heath – 25

“for the state.”74F

75 If we were to construe “the state” to mean only “counsel for 

the state,” this legislative change would be meaningless.75F

76 

This interpretation is also consistent with Article 39.14(a)’s use of the 

word “state” in the phrase “in the possession, custody, or control of the state, 

or any person under contract with the state.” The State points to this phrase 

to argue that the legislative amendment removing the reference to “any 

agencies” of the State suggests the word “state” must now be interpreted to 

mean only “counsel for the state” or otherwise to specifically exclude law 

enforcement agencies. But this interpretation overlooks that the phrase goes 

on to use the word “state” to refer to the State generally. If we were to read 

the word “state” in this phrase to mean “counsel for the state” then the statute 

would be referring to items in possession of those under contract with the 

prosecutor. As a result, the prosecution would be under no obligation to 

produce and permit inspection of items specifically listed as discoverable, such 

as the witness statements and offense reports described in the statute, which 

are generally in the possession of law enforcement rather than third-party 

contractors with a District Attorney's Office. The more natural reading of the 

statute is that the “state,” including law enforcement as well as third-party 

75 Act of May 16, 2013, 83rd Leg., R.S. ch. 49, Tex. Gen. Laws 106, 106.

76 Ex parte Trahan, 591 S.W.2d 837, 842 (Tex. Crim. App. 1979) (“In enacting an amendment 

the Legislature is presumed to have changed the law, and a construction should be adopted

that gives effect to the intended change, rather than one that renders the amendment 

useless.”).
Heath – 26

contractors with the state such as crime laboratories,76F

77 has a duty to disclose 

evidence. That a prosecutor may be responsible in practice for carrying out 

the duty to disclose77F

78 does not equate to a textual basis for a limitation on 

the meaning of “state” as it is used in the statute.

Additionally, providing an exception to the disclosure of discoverable

evidence when it is only in the possession of law enforcement and not in the 

possession of the prosecutor would cause an irreconcilable conflict with Article 

39.14(h). The Michael Morton Act added subsection (h) to Article 39.14, which 

now provides:

Notwithstanding any other provision of this article, the state shall 

disclose to the defendant any exculpatory, impeachment, or 

mitigating document, item, or information in the possession, 

custody, control of the state that tends to negate the guilt of the 

defendant or would tend to reduce the punishment for the offense 

charged.78F

79 

This subsection in Article 39.14 imposes a free-standing duty on “the state” 

to disclose all exculpatory, impeaching, and mitigating evidence in its 

77 See, e.g., Tex. Gov’t. Code Ann. § 411.144(f) (authorizing the director of the Texas 

Department of Public Safety to contract with “a laboratory, state agency, private entity, or 

institution of higher education for services to perform DNA analyses.”); see also Tex. Code 

Crim. Proc. Ann. art. 38.35 (a)(1) (defining “crime laboratory” as including “a public or private 

laboratory or other entity that conducts a forensic analysis subject to this article”); Rhomer 

v. State, 569 S.W.3d 664, 672-75 (Tex. Crim. App. 2019) (Hervey, J. concurring) (setting out 

statutes and rules related to crime laboratory accreditation and the licensing of forensic 

analysts in Texas); see, e.g., TEXAS FORENSIC SCIENCE COMMISSION, 

https://fsc.txcourts.gov/AccreditedLabPublic (last visited June 3, 2024) (providing a 

searchable list of crime laboratories accredited in Texas). 

78 See Tex. Code Crim. Proc. Ann. art. 2.01 (“[e]ach district attorney shall represent the State 

in all criminal cases in the district courts of his district”).

79 Tex. Code Crim. Proc. Ann. art. 39.14(h).
Heath – 27

possession, custody, or control that tends to negate guilt or reduce 

punishment for the offense charged.79F

80 This duty exists regardless of whether 

the defense ever requests discovery from the State. 

We have recognized that this duty is “much broader than the 

prosecutor’s duty to disclose as a matter of due process under Brady v. 

Maryland.”80F

81 But even under Brady, a prosecutor’s duty to disclose 

exculpatory information has long been understood to require disclosure of 

information held by law enforcement.81F

82 In the context of Brady, we have 

recognized that law enforcement officers are agents of the State.82F

83 And an

item under the exclusive control of law enforcement as an agent of the State 

80 Watkins, 629 S.W.3d at 277 (citing Article 39.14(h)).

81 Id. (“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 v. Maryland.”) (citing Brady v. Maryland, 373 U.S. 83 (1963)).

82 See Pena v. State, 353 S.W.3d 797, 811 (Tex. Crim. App. 2011) (holding that the court of 

appeals erred to conclude that Brady did not apply because the duty to disclose existed where 

an audio recording was known to the State, which includes, “in addition to the prosecutor, 

other lawyers and employees in his office and members of law enforcement connected to the 

prosecution of the case”); Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (“Even 

if the prosecutor was not personally aware of the evidence, the State is not relieved of its 

duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and 

employees in his office and members of law enforcement connected to the investigation and 

prosecution of the case.”) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)); see also 

Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (a Brady violation occurs when 

the government fails to turn over evidence that is known only to the police and not the 

prosecutor).

83 Id. 
Heath – 28

is subject to disclosure under Brady.83F

84 Article 39.14(h) not only codifies the 

Brady requirement, it broadens its reach.84F

85 

The State’s reading of “the state” in Article 39.14(a) would conflict with 

Article 39.14(h)’s codification and expansion of Brady because it would 

necessarily limit the State’s obligation under subsection (h) to only 

exculpatory, impeaching, or mitigating items in the possession, custody, or 

control of the prosecutor. In this way, a prosecutor’s obligations under Article 

39.14(h) would diminish rather than broaden the State’s obligation under 

Brady and the Michael Morton Act. It would effectively return criminal 

discovery to a pre-2013 paradigm in which there is no general right to 

discovery beyond Brady v. Maryland.85F

86

Finally, this interpretation of the word “state” is consistent with the 

Legislature’s more recent passage of Art. 2.1397. In 2021, the Legislature 

passed Senate Bill 111, entitled “Certain Duties of Law Enforcement Agencies 

Concerning Certain Information Subject to Disclosure to a Defendant.” 86F

87 The 

84 Id.

85 Watkins, 618 S.W.3d at 277.

86 But see S. Comm. on Crim. Justice, Bill Analysis, S.B. 1611, 83rd Leg. R.S. (as filed July 

26, 2013) (Brady v. Maryland requires prosecutors to turn over to the defense any evidence 

that is relevant to the defendant's case. However, Brady is vague and open to interpretation, 

resulting in different levels of discovery across different counties in Texas. That is why a 

uniform discovery statute is needed. S.B. 1611 will save attorney resources as well as 

taxpayer dollars by limiting discovery disputes and increasing efficient resolution of cases, all 

while reducing the likelihood of costly appeals and wrongful convictions).

87 Act of June 14, 2021, 87th Leg., R.S., ch. 510, 2021 Tex. Gen. Laws 1011, 1011 (effective 

Sept. 1, 2021).
Heath – 29

Bill enacted Article 2.1397 of the Code of Criminal Procedure, which, in 

relevant part, provides: 

A law enforcement agency filing a case with the attorney 

representing the state shall submit to the attorney representing 

the state a written statement by an agency employee with 

knowledge of the case acknowledging that all documents, items, 

and information in the possession of the agency that are required 

to be disclosed to the defendant in the case under Article 39.14 

have been disclosed to the attorney representing the state.

If at any time after the case is filed with the attorney representing 

the state the law enforcement agency discovers or acquires any 

additional document, item, or information required to be disclosed 

to the defendant under Article 39.14, an agency employee shall 

promptly disclose the document, item, or information to the 

attorney representing the state.87F

88

The statute’s reference to items that must be disclosed to the defendant 

under Article 39.14 recognizes that both the prosecutor and law enforcement 

have a duty to disclose evidence under Article 39.14 even if the evidence is 

not in the possession of the prosecution. The sponsors of this Bill recognized 

that Article 39.14 requires prosecutors to disclose information that may be 

known or not known to exist but was collected by and in the possession of the 

investigating law enforcement agency.88F

89 They further recognized that 

88 Tex. Code Crim. Proc. Ann. art. 2.1397(b), (c), repealed by Act of June 12, 2023, 88th 

Leg., R.S., ch. 765, 2023 Tex. Gen. Laws, 1839, 1976 (renumbering Article 2.1397 to Article 

2A.209 effective January 1, 2025).

89 S. Comm. on Crim. Justice, Bill Analysis, S.B. 111, 87th Leg. R.S. (as filed May 31, 2021). 

The Sponsor’s Statement of Intent provided: “[u]nder Article 39.14 . . . prosecutors are 

required to turn over to the defense all material evidence except those items that are 

exempted by statute. Prosecutors are obligated to disclose this evidence to the defendant, 

but in many instances, prosecutors are reliant on the release of evidence, known or not known 

to exist, collected by the investigating law enforcement agency. If an investigating law 

enforcement agency does not turn over information or evidence to the prosecutor, the 

prosecutor can face sanctions including reprimand, censure, termination and even disbarment 
Heath – 30

because discovery is facilitated by prosecutors, as representatives of the 

State, prosecutors may ultimately face sanctions if a law enforcement agency 

fails to disclose evidence.89F

90 The court of appeals observed that Article 2.1397 

recognizes that the state’s duty to produce discoverable information extends 

beyond the prosecutor to items in the possession of law enforcement.90F

91 We 

agree. With this recognition, the statute seeks to facilitate disclosure and 

prevent inadvertent non-disclosure, which supports Appellee’s interpretation 

of Article 39.14(a). 

The State contends, however, that Article 2.1397 recognizes that there 

is a distinction between what is in the possession of law enforcement and what 

is in the possession of the prosecution. The State argues that if evidence in 

the possession of law enforcement is considered to be in the possession of the 

prosecution, then Article 2.1397 would be unnecessary. On the contrary, 

Article 2.1397 is an attempt to assist prosecutors in meeting Article 39.14’s 

requirements by adding an obligation to law enforcement to attach a written 

statement verifying that it has turned over evidence it was already obligated 

to turn over; it helps ensure that the prosecutor has turned over evidence “as 

for his subsequent failure to disclose the information to the defense. Law enforcement 

agencies however, are not compelled to disclose the information, nor do they face sanctions 

for their inadvertent or willful failure to release all evidence or required information to 

prosecutors.”

90 Id.

91 Heath, 642 S.W.3d at 597 n. 3. 
Heath – 31

soon as practicable” by providing verification that everything that is required 

to be disclosed has been turned over from law enforcement. 

The most natural use of the word “state” in the statute is as a reference

to the State of Texas as a party to the litigation. The word “state” is only 

textually limited to “counsel for the state” when the Legislature intended to 

refer to attorneys representing the State. Thus, we agree with Appellee that 

the deletion of the phrase “any of its agencies,” and its replacement with “any 

person under contract with the State,” did not limit the State’s statutory 

obligation—it merely removed surplusage. This interpretation of “state” 

renders its meaning consistent throughout the statute and avoids rendering 

the phrase “counsel for the state” meaningless. It is also consistent with the 

purpose of the Michael Morton Act to broaden discovery for criminal 

defendants.

Even if we were to conclude that “the state,” as utilized in Article 

39.14(a), is ambiguous, the broader legislative objective, history, and 

circumstances under which the Michael Morton Act was enacted all lend 

themselves to our conclusion that “the state” still means the State of Texas.91F

92 

As we have already noted, the Michael Morton Act expanded the State’s 

92 Watkins, 619 S.W.3d. at 273 (“When the language of the statute is ambiguous . . . we may 

consider extra-textual factors in construing the statute . . . Extra-textual factors that we may 

consider to resolve ambiguity include: (1) the object sought to be obtained by the Legislature; 

(2) the circumstances under which the statute was enacted; (3) the legislative history; (4) 

the common law or former statutory provisions, including laws on the same or similar 

subjects; (5) the consequences of a particular construction; (6) the administrative 

construction of the statute; and (7) the title or caption, preamble, and any emergency 

provision.”) (internal citations omitted).
Heath – 32

obligation to disclose discovery to the defense, increased the number of State 

entities whose records are subject to discovery, and mandated that the 

disclosure of discovery happen quickly.92F

93 This makes sense considering the 

Act was passed in response to the wrongful conviction of Michael Morton, who 

spent twenty-five years in prison for a crime he did not commit because 

material exculpatory evidence had been withheld by the prosecutor.93F

94 The 

Michael Morton Act was enacted in part to preserve a criminal defendant’s 

rights under Brady v. Maryland.94F

95 Thus, it would contravene the Legislature’s 

intent in passing the Act to interpret “the state” under Article 39.14 to mean 

only evidence in the possession of a particular prosecutor as being subject to 

disclosure. It would also undermine the statute’s purpose that “[e]very 

defendant should have access to all the evidence relevant to his guilt or 

innocence, with adequate time to examine it.”95F

96 The State’s suggested 

statutory interpretation would ultimately limit the scope of criminal discovery 

despite the obvious legislative intent to broaden it. Given our determination 

93 Id. at 278.

94 Id. at 274-75 (citing Hearing on S.B. 1611 Before the S. Comm. on Criminal Justice, 83rd 

Leg., R.S. (2013)). 

95 Id. at 289 (citing Sen. Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1611, 83rd Leg., 

R.S. (2013)).

96 Senate Research Center, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (July 26, 2013) 

(Rodney Ellis et al. statement of intent). During the third reading of 2013 SB 1611, Senator 

Ellis, the primary authority of the Michael Morton Act, stated the Act: “removes barriers to 

discovery processes in Texas to ensure a more relevant evidence procedure comes forward 

and evidence that is relevant will be disclosed; it has to be disclosed.” S.J. of Tex., 83rd Leg., 

R.S. 818, 819 (2013). 
Heath – 33

that Article 39.14(a)’s reference to “the state” refers to the State of Texas,

we must next consider the meaning of the statute’s phrase “as soon as 

practicable.” 

“As Soon As Practicable” by its Plain Terms

Has No Knowledge Requirement

The State’s statutory interpretation of the phrase “as soon as 

practicable” starts from the premise that the prosecution only violates Article 

39.14 when it knowingly withholds evidence in an act of bad faith. This is 

unsurprising given that, prior to the Michael Morton Act’s passage, this Court 

repeatedly held that there was no general right of discovery in Texas.96F

97 Given 

this legal landscape, the defense was required, as a practical matter, to 

characterize a prosecutor’s failure to provide discovery as a violation of the 

prosecutions’ duty to produce exculpatory evidence under Brady v. 

Maryland,97F

98 as some form of prosecutorial misconduct for violating a trial 

court’s order for discovery,98F

99 or as an ethical violation under the Rules of 

Professional Misconduct.99F

100

97 See Quinones, 592 S.W.2d at 941, abrogated on other grounds Ehrke v. State, 459 S.W.3d 

606 (Tex. Crim. App. 2015).

98 Brady v. Maryland, 373 U.S. 83, 87 (1963).

99 See State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004) (“trial court’s order 

excluding the evidence was based on its ultimate finding that the State acted willfully in 

violating the discovery order”).

100 See Francis v. State, 428 S.W.3d 850, 854-55 (Tex. Crim. App. 2014) (the exclusion of 

evidence willfully withheld under a discovery order “is in the nature of a court-fashioned 

sanction for prosecutorial misconduct”); Tex. Disciplinary Rules Prof’l Conduct 3.09(d) 

(prosecutor in a criminal case shall “make timely disclosure of all evidence or information 

known to the prosecutor that tends to negate the guilt of the accused or mitigates the 

offense").
Heath – 34

But all of these arguments inherently contain a scienter requirement. 

Prosecutorial misconduct claims require a bad faith violation of a trial court’s 

order. Even the special ethical duties of a prosecutor require a showing that 

the prosecutor withheld evidence he or she knew about.100F

101 A Brady violation 

occurs when the State suppresses favorable evidence whether willfully or 

inadvertently, but the Brady obligation “does not require prosecuting 

authorities to disclose exculpatory information to defendants that the State 

does not have in its possession and that is not known to exist.”101F

102 That such 

knowing conduct might violate a prosecutor’s constitutional or ethical duties 

as well as the statute does not mean that the same standard applies for a 

mere statutory violation. And this case does not turn on a constitutional or 

ethical challenge to the prosecutor’s behavior. Indeed, it is fair to observe 

that under the facts of this case, the prosecutor did not violate her 

constitutional or ethical duties under Brady or the disciplinary rules, nor did 

she intentionally violate a trial court’s order.102F

103 That is not the issue in this 

case.

101 Tex. Disciplinary Rules Prof’l Conduct 3.09(d) (“[t]he prosecutor in a criminal case shall . 

. . make timely disclosure to the defense of all evidence or information known to the 

prosecutor that tends to negate the guilt of the accused or mitigates the offense”).

102 Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); Brady, 373 U.S. at 87. For 

purposes of Brady, “[e]ven if the prosecutor was not personally aware of the audio recording, 

the State is not relieved of its duty to disclose because ‘the State’ includes, in addition to the 

prosecutor, other lawyers and employees in his office and members of law enforcement 

connected to the investigation and prosecution of the case.” Ex parte Reed, 271 S.W.3d 609, 

726 (Tex. Crim. App. 2008). 

103 We specifically reject the court of appeals’ holding that the prosecutor’s mere failure to 

inquire about discoverable items amounts to bad faith. While the failure to make an inquiry
Heath – 35

In this case, we are merely asked to consider whether the prosecutor 

failed to comply with the terms of a statute. And, by its plain text, Article 

39.14 does not contain a knowledge requirement similar to the types of claims 

discussed above. Once a timely request is received from the defense, the 

State’s obligation to produce evidence that is “in the possession, custody, or 

control of the state or any person under contract with the state,” excludes 

only the work product of counsel for the state and their investigators, and 

otherwise privileged or non-material items.103F

104 The statute’s requirement that 

discovery be provided “as soon as practicable” is likewise triggered by the 

receipt of a timely request by the defense and is without any knowledge 

modifier or requirement.

The legislature is certainly capable of limiting an obligation imposed on 

counsel for the State with a knowledge requirement if it so desires. For 

example, Article 2.03 of the Texas Code of Criminal Procedure imposes a duty 

upon prosecutors to present by information, or bring to the notice of the grand 

jury, any officer for neglect or failure of duty or violation of law. But that 

statute, by its plain language, carefully limits that duty to whenever such 

violations come within the prosecutor’s knowledge: 

It shall be the duty of the attorney representing the State to 

present by information to the court having jurisdiction, any officer 

for neglect or failure of any duty enjoined upon such officer, when 

such neglect or failure can be presented by information, whenever 

can undercut a claim that the prosecutor turned over evidence “as soon as practicable,” we 

need not make a determination as to whether the prosecutor’s conduct amounted to bad faith.

104 Tex. Code Crim. Proc. Ann. art. 39.14(a).
Heath – 36

it shall come to the knowledge of said attorney that there has been 

a neglect or failure of duty upon the part of said officer; and he 

shall bring to the notice of the grand jury any act of violation of 

law or neglect or failure of duty upon the part of any officer, when 

such violation, neglect or failure is not presented by information, 

and whenever the same may come to his knowledge.104F

105

Article 39.14(a), on the other hand, contains no such knowledge requirement 

or limitation. Accordingly, under the plain language of the statute, “the state” 

is under an obligation to produce material, non-privileged discovery that is “in 

the possession, custody, or control of the state” and must do so “as soon as 

practicable” upon receipt of the defense’s timely request. The State maintains 

that by promptly disclosing the recording “as soon as [the prosecutor] learned 

of the 911 call,” the State complied with its duty to disclose “as soon as 

practicable.” But, as the State concedes, “as soon as practicable” is a

timeliness requirement. 

Because “practicable” in this context is not specifically defined, we 

must look to the accepted common use of the term’s meaning.105F

106 By its 

common meaning, “practicable” is best understood mean “reasonably capable 

of being accomplished.”106F

107 Thus, as soon as it is capable of being 

accomplished or feasible, discovery must be produced. To the extent that the 

105 Tex. Code Crim. Proc. Ann. art. 2.03(a) (emphasis added).

106 Tex. Code Crim. Proc. Ann. art. 3.01 (“All words, phrases and terms used in this Code are 

to be taken and understood in their usual acceptation in common language, except where 

specially defined).

107 Black’s Law Dictionary, 1418 (11th Ed. 2019); see also Merriam-Webster’s Collegiate 

Dictionary 974 (11th Ed. 2020) (defining “practicable” as “capable of being put into practice 

or of being done or accomplished: feasible”); see Clinton, 354 S.W.3d at 800.
Heath – 37

definition of “practicable” includes a “reasonableness” requirement, we 

interpret that to be a requirement of reasonable diligence on the part of the 

prosecutor to discover what items the State has in its possession that it 

intends to introduce at trial.107F

108 While the prosecution may not be reasonably 

capable of producing evidence that has been lost or intentionally hidden by 

law enforcement, those are not the circumstances of this case. If a simple 

request to law enforcement for an item of discovery can result in its disclosure, 

as it did in this case, then disclosure is reasonably capable of being 

accomplished.108F

109 Article 39.14(a) makes clear that offense reports and 

witness statements obtained from law enforcement officers are subject to 

disclosure even though those items are in the possession of law enforcement. 

This understanding of “practicable” also comports with our recognition 

that the broader, mandatory discovery obligation under the Michael Morton 

Act must be “complied with quickly.”109F

110 If we were to interpret “as soon as 

practicable” to mean whenever discovery comes to the prosecutor’s 

knowledge, then prosecutors could delay complying with Article 39.14 by 

simply refusing to ask law enforcement to turn over evidence in its possession. 

Here, the prosecutor reasonably could have produced the recording of the 911 

108 See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).

109 A statement from a law enforcement agency acknowledging that everything required to 

be disclosed under Article 39.14 had been disclosed to the prosecutor, as is required now by 

Article 2.1397, might suggest that any item not disclosed was not reasonably capable of being 

disclosed. 

110 Watkins, 619 S.W.3d at 278.
Heath – 38

call in response to the defense’s timely request for discovery sooner than she 

did. Because the recording was reasonably capable of being discovered by 

the state, the prosecutor did not disclose this evidence to the defense “as soon 

as practicable.” 

We agree with the State that Article 39.14 imposes discovery 

obligations, and those obligations are carried out by prosecutors as 

representatives of the State of Texas in criminal actions.110F

111 But the State’s 

interpretation of the statute would then remove any duty on the part of the 

prosecution to seek out evidence to comply with Article 39.14 as well as any 

duty on the part of law enforcement to turn evidence over to the prosecution 

for disclosure. Under the State’s interpretation of the phrase “as soon as 

practicable” and the reference to items in possession of “the state,” 

prosecutors would be under no obligation to produce anything because they 

could always claim that the evidence was unknown and currently unavailable 

to the prosecutor, even if it were in the possession of a law enforcement 

agency and readily available upon request. Given that we have already 

determined that Article 39.14 includes items in the possession of law 

enforcement, it follows that the State has an obligation to exercise reasonable 

diligence to ascertain what discoverable evidence is at its disposal. In short, 

as Chief Justice Gray in the court of appeals observed, “once a discovery item 

111 Tex. Code Crim. Proc. Ann. art. 2.01 (“each district attorney shall represent the State in 

all criminal cases in the district courts of his district”).
Heath – 39

is requested, the State now has an affirmative duty to search for the item and 

produce it to the defendant in a timely manner.”111F

112 

Here, interpreting “the state” under Article 39.14(a) as referring only to 

the prosecutor would render the statute’s reference to “counsel for the state” 

meaningless, create conflict between subjections (a) and (h), and would

completely undermine the broader legislative intent behind the statute. 

Likewise, interpreting “as soon as practicable” to contain a knowledge 

requirement on the part of the prosecutor contravenes the plain text of the 

statute and would require us to ignore the context in which that phrase 

appears. Consequently, we hold that under Article 39.14, “the state” means 

the State of Texas, which includes law enforcement agencies, and imposes a 

duty upon prosecutors as representatives of “the state” to disclose 

discoverable evidence “as soon as practicable,” meaning as soon as the State 

is reasonably capable of doing so, upon receiving a timely request from the 

defense. 

Was Article 39.14(a) Violated? 

It was. We hold that the trial court did not err to determine that the 

State violated Article 39.14(a) when it disclosed the 911 call fourteen months 

after Appellee’s timely request. The trial court found that law enforcement 

was in possession of the 911 call since the date of the alleged offense in 

November of 2016. A timely request for discovery was made by defense 

112 Heath, 642 S.W.3d at 597.
Heath – 40

counsel on March 20, 2017. There is no dispute that the recording of the 911 

call is material evidence that is required to be disclosed under Article 39.14. 

The recording of the 911 call was disclosed and produced to the defense on 

May 23, 2018, just days before trial was to begin on May 29—the fourth trial 

setting in this case. The trial court also found that the recording of the 911 

call was in the possession of law enforcement, unbeknownst to the prosecutor,

until on or about May 18, 2018. The record supports these findings. 

The trial court concluded that the State violated Article 39.14(a) 

because the State’s duty to disclose extends to discoverable items that are in 

the possession, custody, and control of “the state,” which includes items in 

the possession of law enforcement agencies. The trial court also concluded

that the prosecutor had a specific duty to ascertain what discoverable evidence 

was available and disclose it to the defense as soon as practicable. And, 

finally, the trial court concluded that the recording of the 911 call was not 

disclosed “as soon as practicable” given that law enforcement had possession 

of the recording for eighteen months and the defense submitted a timely 

request for discovery fourteen months prior to the fourth trial setting. Under 

these facts, we hold the trial court did not abuse its discretion in determining 

that the State had violated Article 39.14 by failing to disclose the 911 call as 

soon as practicable after the defendant’s request for discovery.

Does a Trial Court have the Authority to Exclude Evidence for a

Violation of Article 39.14?
Heath – 41

Having held that the trial court did not err in concluding that the State’s 

untimely disclosure of the 911 call violated Article 39.14(a), we must next 

consider the trial court’s authority to exclude the evidence. The trial court 

granted Appellee’s motion to exclude the 911 call at trial and the court of 

appeals held that the trial court did not abuse its discretion in doing so.112F

113 

The court of appeals reasoned that “a failure to at least inquire about the 

existence of discoverable items in response to a proper request in a timely 

manner is all the evidence necessary to show that the failure to timely produce 

the item in discovery was due to what was previously characterized as a ‘willful 

violation’ or ‘bad faith.’”113F

114 As explained below, we agree with the lower 

court’s holding that the trial court did not abuse its discretion but we disagree 

that the failure to inquire about the existence of discoverable evidence rises 

to the level of “bad faith” on the part of the prosecutor. Instead, we 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. 

The State argues that the trial court lacks authority to exclude evidence 

for a discovery violation absent bad faith on behalf of the prosecution or 

113 Heath, 642 S.W.3d at 597 (“In a situation where the prosecutor was set for trial and 

presumably ready to proceed to trial without the evidence on three prior settings, the ruling

by the trial court excluding the evidence that was not previously produced, in this instance 

the recording of the 9-1-1 call, is not an abuse of discretion. The trial court fashioned an 

appropriate sanction for the State’s failure to timely produce the recording in response to the 

discovery request.”).

114 Id. 
Heath – 42

prejudice to the defendant. Appellee argues that trial courts have authority 

under the common law or, alternatively, pursuant to their inherent authority 

to exclude evidence that was willfully withheld from disclosure. Appellee 

further argues that the record demonstrates a willful violation of the State’s 

discovery obligation because the State announced ready for trial four times

over a period of many months before the call was produced. Appellee argues, 

alternatively, that the determination of willfulness is at least within the zone 

of reasonable disagreement. Thus, while the parties do not dispute that the 

trial court has the authority to exclude evidence based on a violation of Article 

39.14; they dispute, under what set of facts, a trial court may exercise that 

authority. Ultimately, we disagree with the State that a trial court’s authority 

is so limited.

A trial court’s decision to exclude evidence is reviewed under an abuse 

of discretion standard meaning that its decision will not be overturned unless 

it falls outsize of the zone of reasonable disagreement.114F

115 This is the standard 

we have historically applied to a trial court’s decision to exclude evidence for 

discovery violations pre-Michael Morton Act.115F

116 It is also the standard applied 

when considering the admission or exclusion of evidence in other contexts.116F

117 

115 Francis, 428 S.W.3d at 855.

116 Id.; see also Oprean, 201 S.W.3d at 726.

117 See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (“A trial judge’s decision 

on the admissibility of evidence is reviewed under an abuse of discretion standard and will 

not be reversed if it is within the zone of reasonable disagreement.”); Russeau v. State, 291 

S.W.3d 426, 438 (Tex. Crim. App. 2009) (“A trial court’s ruling admitting evidence will not be 

reversed on appeal absent a clear abuse of discretion.”).
Heath – 43

We conclude it is the standard that should apply to a trial court’s decision to 

exclude evidence for a discovery violation today. 

Article 39.14 has never included a provision concerning the remedy for 

a discovery violation, but this Court recognized a trial court’s authority to 

exclude inculpatory evidence withheld, even inadvertently, in violation of a

discovery order in Hollowell v. State.117F

118 In that case, the defense argued that 

due process was violated by the introduction of palmprint evidence connecting 

the defendant to the scene of a burglary, which had not been disclosed pretrial 

despite a trial court order for discovery.118F

119 This Court explained “[t]he State’s 

contention that it was unaware of the existence of the print until after the trial 

was in progress is untenable.”119F

120 The Court noted the palmprint was real 

evidence obtained by the investigating officer, which clearly fell within the 

discovery motion that had been granted.120F

121 We specifically recognized that 

“just as defense counsel has an obligation to investigate the case before he 

goes to trial, the prosecutor has a duty to know what evidence is at his 

disposal.”121F

122 And we went on to explain that the prosecutor had an obligation 

to know what evidence was at his disposal, citing the discovery motion’s 

118 Hollowell, 571 S.W.2d at 180.

119 Id.

120 Id.

121 Id.

122 Id.
Heath – 44

specific reference to evidence in the possession of law enforcement as 

additional support for the conclusion that the prosecutor had a specific duty 

to ascertain what evidence within the terms of the granted motion was held 

by law enforcement.122F

123 Though we ultimately held that the admission of the 

palmprint evidence was harmless in light of other evidence presented at trial, 

we nevertheless held that the State’s failure to ascertain what evidence it had 

at its disposal amounted to a willful violation of the trial court’s discovery 

order.123F

124 

Decades later, we continued to cite Hollowell for the proposition that 

evidence willfully withheld should be excluded but the application of the 

willfulness standard misinterpreted our holding in Hollowell. Later cases 

developed to essentially require a showing of “bad faith” on the part of the 

prosecution due to a specific intent to knowingly violate a discovery order or 

frustrate the defense. In Francis v. State, for example, we explained: 

Because exclusion of evidence in this context is in the nature of a 

court-fashioned sanction for prosecutorial misconduct, whether 

the trial court should exclude evidence on this basis has been 

made to hinge on ‘whether the prosecutor acted with the specific 

intent to willfully disobey the discovery order.’ Extreme negligence 

or even recklessness on the prosecutor’s part in failing to comply 

with a discovery order will not, standing alone, justify the sanction 

of excluding relevant evidence.124F

125

123 Id. 

124 Id.

125 Francis, 428 S.W.3d at 855.
Heath – 45

The defendant in Francis was charged with aggravated robbery and the 

indictment alleged that he used a deadly weapon, namely a knife.125F

126 A pretrial 

discovery order directed the State to provide the defense with an opportunity 

to inspect all physical objects to be introduced as evidence and all weapons 

seized or acquired as part of the investigation.126F

127 At trial, the defense 

objected to the introduction of a machete at trial, arguing that it had not been

previously made aware of the weapon’s existence.127F

128 The prosecutor claimed 

that although the machete was in her exclusive possession prior to trial, she 

believed the defense was aware of its existence.128F

129 The prosecutor denied a 

conscious objective to thwart the discovery order.129F

130 The trial court declined 

to exclude the weapon and, in a splintered decision, the court of appeals

concluded that the trial court did not err because it could have reasonably 

concluded that the prosecutor did not willfully violate the discovery order.130F

131 

We concluded that, while the trial court could have rationally concluded that 

the prosecutor’s conduct constituted a calculated effort to frustrate the known 

dictates of the pretrial discovery order, the trial court was not obligated to 

126 Id. at 852.

127 Id. 

128 Id. 

129 Id. at 856-57.

130 Id. at 856.

131 Id. at 854.
Heath – 46

draw that conclusion.131F

132 We reasoned that the trial court was free to credit 

the prosecutor’s explanation for the lack of disclosure and, because the facts 

did not ineluctably establish willfulness, we held that the trial court did not 

abuse its discretion.132F

133

On the other hand, in Oprean v. State, we found the State’s failure to 

turn over a DWI videotape in discovery was willful and thus mandated the 

exclusion of the evidence.133F

134 In that case, the State failed to disclose a 

videotape prior to trial, which depicted the defendant’s prior DWI offense that 

it intended to introduce at punishment in violation of the discovery order.134F

135 

The trial court admitted the tape over the defense’s objection.135F

136 We held 

that the prosecutor’s conduct demonstrated a calculated effort to frustrate the 

defense considering the prosecutor’s statements and actions.136F

137 First, we

pointed out that the prosecutor told defense counsel that she only intended to 

introduce the previous judgments at punishment. We noted the absence of 

any suggestion that the prosecutor only subsequently learned of the video’s 

existence. Also, although the prosecutor argued that the discovery order 

132 Id. at 856.

133 Id. at 858-59.

134 Oprean, 201 S.W.3d at 728.

135 Id. at 725.

136 Id. at 725. 

137 Id. at 728.
Heath – 47

contained no Article 37.07137F

138 charge and the defense made no such request,

we reasoned it was clear that she was aware of the discovery order which 

unambiguously required the State to disclose the tape before trial.138F

139 We held 

that the trial court abused its discretion in admitting the videotape over 

defense’s objection.139F

140

In State v. LaRue, we also considered a trial court’s authority to impose

sanctions for the State’s failure to comply with a discovery order.140F

141 In that 

case, the State failed to timely disclose, pursuant to a discovery order and 

repeated requests from the defense, DNA evidence which the trial court 

excluded as a result of the State’s noncompliance.141F

142 The trial court found 

that the State’s failure to timely provide the court-ordered discovery exceeded 

negligent conduct and was, in fact, willful.142F

143 The court of appeals held that 

the trial court erred to exclude the evidence because the record did not

support a finding of intentional disobedience of the trial court’s discovery order

138 Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (“On timely request of the defendant, notice 

of intent to introduce evidence under this article shall be given in the same manner required 

by Rule 404(b), Texas Rules of Evidence.”).

139 Oprean, 201 S.W.3d at 727-28 (“Because the prosecutor knew about the discovery order 

and chose to invoke Article 37.07 after counsel called her attention to the order, she made a 

conscious decision to violate the plain directive of the discovery order.”).

140 Id. at 728.

141 State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004).

142 Id. at 96. 

143 Id. 
Heath – 48

and did not reflect a willful violation of that order.143F

144 We affirmed the court 

of appeals’ judgment, reasoning that, though the prosecutor failed to comply 

with the discovery order—which even he described as ‘grievous error’—there

was no evidence showing that he acted with the specific purpose of disobeying 

the court’s discovery order.144F

145 While the prosecutor’s conduct itself was 

“willful,” in that his actions were voluntary, we found no evidence that, “by 

his choice, he intended to violate the order or harm the defense.”145F

146 We held 

that the trial court erred in excluding the evidence, but expressed no opinion 

as to what lesser sanction should have been imposed given that the 

prosecutor’s conduct was “of a less culpable nature.”146F

147 

Our prior cases analyzed the remedy for a statutory discovery violation 

as a sanction for the violation of a court order. This makes sense given that

prior to the Michael Morton Act, there was no general right to discovery and

Article 39.14 required a showing of good cause and the entry of a trial court 

order for discovery. However, some of our case law appears to have 

misinterpreted Hollowell’s standard of willfulness to require something akin to 

intentionally acting in bad faith. Furthermore, our prior cases focused on 

exclusion as a remedy in the context of bad faith because those were the 

144 Id. at 96-97.

145 Id. at 99.

146 Id. at 97.

147 Id. at 100 (noting neither party presented argument on the issue).
Heath – 49

arguments raised, not because the trial court’s inherent authority is so 

limited.147F

148 

Indeed, the approach to discovery in civil cases suggests trial courts 

possess much broader inherent authority to fashion a remedy for a discovery 

violation. Unlike Article 39.14, the Civil Rules of Procedure contain provisions 

for both failing to comply with an order or request for discovery and failing to 

make a discovery response,148F

149 including a required disclosure, in a timely 

matter.149F

150 Rule 215.2 provides a non-exhaustive list of possible sanctions by 

a court for the failure to comply with proper discovery requests or orders that 

permits a trial court to “make such orders in regard to the failure as are just,” 

and includes, “among others” disallowing further discovery, charging 

discovery expenses, prohibiting matters in evidence, prohibiting the 

disobedient party from making designated claims or defenses, and even taking 

as established facts regarding the matter for which discovery was ordered.150F

151 

Likewise, the civil rules provide that: 

148 Tex. Gov’t Code Ann. § 21.001(a) & (b) (A court has all powers necessary for the exercise 

of its jurisdiction and the enforcement of its lawful orders, including authority to issue the 

writs and orders necessary or proper in aid of its jurisdiction. A court shall require that 

proceedings be conducted . . . in an orderly and expeditious manner and control the 

proceedings so that justice is done”); Dietz v. Bouldin, 579 U.S. 40, 45 (2016) (recognizing 

district courts possess inherent powers “governed not by rule of statute but by the control 

necessarily vested in courts to manage their own affairs so as to achieve the orderly and 

expeditious disposition of cases.” (citing Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962)).

149 Tex. R. Civ. P. 215.2 (Failure to Comply with Order or with Discovery Request).

150 Tex. R. Civ. P. 193.6 (Failing to Timely Respond – Effect on Trial).

151 Tex. R. Civ. P. 215.2(b) (Sanctions by Court in Which Action is Pending).
Heath – 50

A party who fails to make, amend, or supplement a discovery 

response, including a required disclosure, in a timely manner may 

not introduce in evidence the material or information that was not 

timely disclosed . . . unless the court finds that (1) there was good 

cause of the failure to timely make, amend, or supplement the 

discovery response; or (2) the failure to timely make, amend, or 

supplement the discovery response will not unfairly surprise or 

unfairly prejudice the other parties.151F

152

Notably, under the civil rules exclusion of evidence that was not timely 

disclosed is the default. The civil rules place a burden upon the party seeking 

to introduce the evidence to explain or justify the failure to comply with 

discovery.152F

153 And while the rule allows for an exception to exclusion based 

upon a showing of “good cause” by the party who committed the discovery 

violation,153F

154 inadvertent failure to discover the existence of evidence does not 

satisfy that burden.154F

155 Further, even if that burden is met, the rule authorizes 

a trial court to grant a continuance or temporarily postpone trial.155F

156 The civil 

rules concerning discovery are court made rules and implicit in the 

promulgation of these rules is the recognition that courts have inherent 

authority to fashion appropriate remedies when addressing discovery 

152 Tex. R. Civ. P. 193.6(a) (Exclusion of evidence and exceptions).

153 Tex. R. Civ. P. 193.6(b).

154 Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992) (“The good cause 

exception permits a trial court to excuse a failure to comply with discovery in difficult or 

impossible circumstances.”).

155 Id. at 915 (“If inadvertence of counsel, by itself, were good cause, the exception would 

swallow up the rule, for there would be few cases in which counsel would admit to making a 

deliberate decision not to comply with the discovery rules.”).

156 Tex. R. Civ. P. 193.6(c).
Heath – 51

violations. The civil rules’ approach demonstrates that a trial court’s inherent 

authority to fashion an appropriate remedy for a discovery violation is not 

limited to constitutional or ethical violations or bad faith defiance of a court 

order. To the extent that a violation of discovery must be willful, the failure 

to exercise reasonable diligence in ascertaining whether discoverable evidence 

exists satisfies that requirement even if it would not rise to the level of bad 

faith necessary to establish a constitutional or ethical violation.156F

157

We agree with the court of appeals’ conclusion that the old concept of 

‘bad faith’ no longer applied to Article 39.14 given the “substantive change to 

the process for the disclosure of requested items.”157F

158 As the lower court 

explained, “[i]t is no longer sufficient for the State to wait until it gets ready, 

or when the prosecutor decides to prepare the case for trial, to then search 

out and produce properly requested discovery.”158F

159 Article 39.14(a) now 

contains a timeliness requirement and a prosecutor may inadvertently violate 

the statute by failing to exercise reasonable diligence in seeking out 

discoverable items.159F

160 

157 See Hollowell, 571 S.W.2d at 180 (discovery order “placed a specific duty on the prosecutor 

to ascertain what evidence within the terms of the granted motion was held by the police and 

to make such evidence available to the defense under the terms of the order”).

158 Heath, 642 S.W.3d at 597.

159 Id. 

160 Id. 
Heath – 52

The State maintains that the appropriate remedy for an untimely 

disclosure is a continuance to allow defense counsel more time to review the 

recently disclosed evidence.160F

161 We acknowledge that a continuance would be 

a much more restrained solution. But that’s not the question before us. The 

question before us is whether the trial court had the authority to impose the 

remedy it did. That the trial court could have imposed a lesser remedy, 

assuming the formal requirements for a continuance were met, does not mean

the trial court abused its discretion by excluding the evidence in this case. It 

may very well be that reasonable jurists could disagree about the appropriate 

remedy in a particular case, but unless the trial court’s decision is outside of 

the zone of reasonable disagreement, this Court will not overturn its ruling.161F

162 

We agree with the court of appeals that the trial court was within its discretion 

to fashion a remedy it deemed appropriate.

Next, the State argues that the defense’s rejection of a continuance does 

not establish prejudice, and, in fact, it may establish its absence. But as we 

explained above, regardless of the defendant’s rejection of the State’s oral 

motion for continuance, the state’s failure to ascertain the evidence it intended 

to introduce at trial in a timely fashion was enough of a showing of willfulness 

161 If the State desired a continuance, however, it was required to file a written motion. Tex. 

Code Crim. Proc. Ann. art. 29.03 (“A criminal action may be continued on the written motion 

of the State of the defendant, upon sufficient cause shown; which cause shall be fully set 

forth in the motion.”); Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984) (holding 

an oral motion for continuance properly overruled because all motion for continuance must 

be in writing and sworn to).

162 Oprean, 201 S.W.3d at 726.
Heath – 53

to justify the trial court’s remedy of exclusion even if it did not rise to the level 

of a constitutional or ethical violation. As the trial court noted, this case was 

on its fourth trial setting and the State had announced ready for trial at three 

previous trial settings. Though it might have been better practice for the trial 

court to grant even a short recess, assuming the necessary procedural 

requirements were met, the trial court was within its authority to reject the 

State’s argument for a continuance.

Based upon the record in this case, we conclude that the trial court did 

not abuse its discretion in excluding evidence of the 911 call due to the State’s 

untimely disclosure in violation of Article 39.14. Based on the prosecutor’s 

failure to seek out evidence at the State’s disposal, the length of time between 

the discovery request and disclosure – 14 months, and the State’s three 

previous announcements of ready for trial without the evidence at hand, the 

trial court could have reasonably determined that the appropriate remedy for 

the State’s statutory discovery violation was the exclusion of the 911 call. 

While exclusion was not the only remedy available to the trial court, it was not 

a remedy that was beyond the trial court’s discretion to impose. 

Conclusion

Under Article 39.14, "the state” means the State of Texas, not an 

individual prosecutor or a district attorney’s office. While the statutorily

imposed discovery obligations fall on the prosecutor as the State of Texas’

representative in criminal cases, the obligation to produce material evidence 
Heath – 54

extends to evidence that is in the possession of law enforcement agencies. As 

such, the prosecution may inadvertently violate Article 39.14 by failing to

disclose evidence that is in the possession of law enforcement because it has 

an obligation to ascertain what evidence is available to it, as well as an 

obligation to disclose that evidence to the defense as soon as practicable upon 

timely request. Here, the State violated its duty under Article 39.14 by failing 

to timely disclose evidence of a 911 call made by the complainant’s mother 

on the date of the alleged offense. Though the prosecutor was unaware of 

the recording when Appellee made his discovery request nearly fourteen 

months prior and on the three separate occasions when the State announced 

it was ready to proceed to trial in this case, the State was obligated to find 

out what evidence was available to it. Under these circumstances, the trial 

court acted within its discretion to exclude the 911 call based on a violation of 

the discovery statute. Accordingly, we affirm the judgment of the court of 

appeals.

Delivered: June 12, 2024

Publish