IN THE

TENTH COURT OF APPEALS

No. 10-18-00187-CR

THE STATE OF TEXAS,

Appellant

v.

DWAYNE ROBERT HEATH,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2017-241-C2

OPINION

The State of Texas appeals an order of the trial court that granted Heath's motion 

to suppress "illegally withheld" evidence. See TEX. CODE CRIM. PROC. art. 44.01(a)(5).1 The 

trial court found that the prosecution had failed to produce a 9-1-1 recording "as soon as 

practicable" after a request by the defendant and ruled that the evidence was excluded. 

1 The pretrial exclusion of evidence has been held to be appealable by the State pursuant to Article 

44.01(a)(5) even if it was not excluded pursuant to a traditional motion to suppress evidence. See State v. 

Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002) (State may appeal an adverse pretrial ruling on a "motion 

to suppress" that seeks to exclude evidence as inadmissible rather than to suppress evidence as illegally 

obtained). The State certified in its notice of appeal that the excluded evidence is "of substantial importance" 

to the State's case," an assertion we are not permitted to review. See State v. Chupik, 343 S.W.3d 144, 145-46 

(Tex. Crim. App. 2011).
State v. Heath Page 2

See TEX. CODE CRIM. PROC. ANN. art. 39.14(a). In one issue, the State complains that the 

trial court abused its discretion by granting the motion to exclude the evidence because 

a motion for continuance was necessary for Heath to preserve his complaint and that 

there was no willful violation of the discovery statute or other constitutional basis upon 

which to exclude the evidence. Because we find no abuse of discretion, we affirm the trial 

court's order granting the motion to suppress evidence.

In our original opinion in this proceeding, this Court found that the motion was 

erroneously granted because Heath's request for discovery was inadequate and therefore 

the State did not have a duty to produce the recording. See State v. Heath, 582 S.W.3d 495 

(Tex. App.—Waco 2018). However, the Court of Criminal Appeals reversed, finding that 

this Court improperly addressed the adequacy of the request because the State did not 

preserve that issue before the trial court. See State v. Heath, No. PD-0012-19, 2019 Tex. 

Crim. App. Unpub. LEXIS 774 (Tex. Crim. App. Dec. 18, 2019) (not designated for 

publication). We must therefore assume for purposes of this opinion that there was a 

proper request for the recording.

Approximately one week prior to the fourth jury trial setting in this proceeding, 

the prosecutor discovered that there might be a 9-1-1 recording related to the alleged 

offense while interviewing the victim's grandmother in preparation for trial. The 

prosecutor thereafter investigated, learned a recording did exist, and procured the 

recording from the sheriff's department. The prosecutor produced the recording to Heath 

on the same day that it came into the prosecutor's possession, which was six days before 
State v. Heath Page 3

trial. Heath filed a pretrial writ of habeas corpus and motion to suppress illegally 

withheld evidence seeking the exclusion of the recording. After a hearing on the morning 

of the jury trial setting, the trial court granted Heath's motion to suppress and excluded 

the 9-1-1 recording. The State filed an interlocutory appeal of the trial court's ruling. See

TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). The trial court entered findings of fact and 

conclusions of law at the State's request.

STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress evidence under a 

bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 

2018). At the hearing on the motion, the trial court is the sole factfinder and judge of the 

credibility of the witnesses and of the weight to be given their testimony. Id. at 190. We 

therefore afford almost complete deference to the trial court's determinations of historical 

facts. Id. But we review de novo the legal significance of the facts found by the trial court. 

Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017).

We must view the evidence in the light most favorable to the trial court's decision 

on the motion. State v. Garcia, 569 S.W.3d 142, 152-53 (Tex. Crim. App. 2018). When, as 

here, the trial court makes explicit fact findings, we determine whether the evidence, still 

viewed in the light most favorable to the trial court's decision, supports the findings. Id. 

at 153. We must defer to the trial court's findings if they, when read in their totality, 

reasonably support the trial court's legal conclusion. Id. This is so even if the findings 

might be ambiguous when viewed piecemeal and in isolation. Id. We give non-technical, 
State v. Heath Page 4

common-sense deference to each finding individually and to the totality of the findings. 

See id.

We sustain the trial court's decision on the motion if it is correct under any 

applicable theory of law. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We 

may reverse only when the decision is arbitrary, unreasonable, or outside the zone of 

reasonable disagreement. Id.

BACKGROUND FACTS

Shortly after being appointed to represent Heath, counsel for Heath sent the state 

an email requesting discovery in March of 2017. Discovery was produced in response to

this request in July of 2017. This proceeding had been set for trial and continued three 

times prior to the discovery of the recording and was continued due to other cases taking 

priority. The record is less than clear as to the procedure and whether or not the 

prosecutor actually announced "ready" for trial at those prior settings. The trial court's 

findings of fact do not include whether the parties announced "ready" at those prior 

settings.

On May 29, 2018, prior to voir dire on the fourth trial setting, the trial court 

conducted a hearing on Heath's motion. At the hearing, Heath argued that the 9-1-1 

recording should be excluded solely because it was not produced "as soon as practicable" 

pursuant to article 39.14(a) of the Code of Criminal Procedure. Article 39.14(a) states that, 

upon proper written request by the defense, the State is required to produce certain items 

of discovery in its possession "as soon as practicable." See TEX. CODE CRIM. PROC. ANN.
State v. Heath Page 5

art. 39.14(a). 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. 

See id. 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). See Watkins v. State, 619 S.W.3d 

265 (Tex. Crim. App. 2021).

In the hearing, counsel for Heath argued that the prosecutor's failure to ascertain 

the existence of the recording until the fourth trial setting was not due to bad faith on the 

part of the prosecutor but the prosecutor was under a duty to ascertain the existence of 

the recording and her failure to do so resulted in the recording's production not being 

made "as soon as practicable." Heath argued that because the recording was in the 

possession of "the State" since its creation, regardless of the bad faith or willful intent of 

the prosecutor, the recording should be excluded. In response to the State's offer of a 

continuance, Heath expressed that he did not want a continuance and that a continuance 

would not resolve the timeliness of the production of the recording. Heath did not argue 

that he was unable to proceed to trial if the recording was admitted into evidence, simply 

that it should be excluded because the prosecutor did not learn of its existence "as soon 

as practicable." 

The prosecutor responded that she did not learn of the existence of the 9-1-1 

recording until she conducted the interview with the witness and that the offense report 

or other information she had did not reflect that a 9-1-1 call was made. The prosecutor 

stated that 9-1-1 calls are not as common in offenses such as injury to a child and that she 
State v. Heath Page 6

did not know to look for a recording until the interview when the witness informed her 

that she called 9-1-1 to make an initial report of the offense. The prosecutor immediately 

sought the production of the recording and made it available to the defense the same day 

she received it. The prosecutor stated that she had learned of the existence of photographs 

during the pendency of the case, and had procured them from law enforcement 

immediately, but had nothing in her possession to indicate that a 9-1-1 recording existed 

prior to the interview. 

Heath contended that he was not disputing the prosecutor's statements or that she 

had ever acted in bad faith in not learning of the existence of the recording. The trial court 

granted Heath's motion to exclude the recording and attempted to move to voir dire; 

however, the prosecutor expressed the State's intent to appeal his decision and the trial 

court granted a stay of the proceedings so that the exclusion could be appealed. The case 

remains stayed in the trial court.

The trial court's findings of fact include findings that the case had been set for 

pretrial on various dates but that the prosecutor "failed to ascertain the existence of the 

9-1-1 recording" on each of those dates, that the prosecutor first learned of the existence 

of the recording when interviewing a witness on or about May 18, 2018, that the 

prosecutor "promptly" requested the recording from the sheriff's department, and that 

the prosecutor received and turned over the recording to Heath on May 23, 2018. The 

conclusions of law include a conclusion that the prosecutor "has 'a specific duty ... to 

ascertain what evidence within the terms of [article 39.14 is] held by the police and to 
State v. Heath Page 7

make such evidence available to the defense.' See Hollowell v. State, 571 S.W.2d 179, 180 

(Tex. Crim. App. 1978)," and is under a "statutory duty" to disclose the evidence "as soon 

as practicable," that the prosecutor violated the duty that "as soon as practicable ... the 

state shall produce" the evidence, and therefore the evidence was excluded because the 

prosecutor failed to comply with article 39.14(a). There were no findings as to the intent 

of the prosecutor or the credibility of the witnesses.

In its sole issue on appeal, the State argues that the trial court abused its discretion 

by granting the motion to suppress the 9-1-1 recording because the failure of the 

prosecutor to produce the recording was not a "willful" violation of article 39.14(a) and 

therefore, exclusion was not the proper remedy.

FAILURE TO PRODUCE EVIDENCE

It has long been the law that "evidence willfully withheld from disclosure under a 

discovery order should be excluded from evidence." See Hollowell v. State, 571 S.W.2d 179, 

180 (Tex. Crim. App. 1978). Since that time, however, the rules regarding criminal 

discovery have been changed with the enactment of the Michael Morton Act in article 

39.14(a), which requires that "as soon as practicable after receiving a timely request from 

the defendant the state shall produce" certain categories of items in discovery. See TEX.

CODE CRIM. PROC. ANN. art. 39.14(a). The statute now requires only a request, rather than

a court order, to trigger the State's duty to produce discovery. However, the statute does 

not include a definition for what is "as soon as practicable," nor does it include any 

remedies for failure to comply with the request.
State v. Heath Page 8

Historically, the exclusion of evidence is at its essence a court-fashioned sanction 

for prosecutorial misconduct. See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 

2014). As such, "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[.]'" Id. at 855 (quoting Oprean v. State, 201 S.W.3d 724, 727 

(Tex. Crim. App. 2006)). "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." Id.; see also State v. LaRue, 152 S.W.3d 95, 97, 99-

100 (Tex. Crim. App. 2004) (holding that although the prosecutor "may have been 

extremely negligent or even reckless with respect to the result of his actions," the evidence 

in the record did not show willful conduct on the part of the State). In other words, even 

though lesser remedies might suffice to cure harm, the most extreme remedy of exclusion 

is required only if the record shows the prosecutor intentionally violated the order in a 

calculated effort to frustrate the defense. See Oprean, 201 S.W.3d at 728.

On appeal, Heath argues that "willful" conduct by the State is satisfied because the 

prosecutor failed to satisfy her duty to ascertain what evidence is in the possession of the 

State as soon as practicable pursuant to article 39.14(a) of the Code of Criminal Procedure, 

as first required in Hollowell. See Hollowell, 571 S.W.2d at 180. In this, he contends that the 

prosecutor was under an affirmative duty to seek out what evidence was in the 

possession of the State earlier than it did, and the failure to do so in and of itself 

constitutes willful conduct that allows for exclusion of the evidence because it did not 
State v. Heath Page 9

occur "as soon as practicable." In this, Heath argues that a continuance would not have 

resolved the issue, because the fact that the evidence was not produced "as soon as 

practicable" could not be resolved by requiring him to seek more time to prepare for trial.

The question thus to be answered in this proceeding is whether the old concept of 

"willful violations" and "bad faith" still apply in the same way with the Legislature’s use 

of the phrase “as soon as practicable” which arguably infused an element of timeliness 

into the timing of the discovery response regardless of willful misconduct. We find that 

they do not. In this context, in its amendments to article 39.14(a), the Legislature made a 

substantive change to the process for the disclosure of requested items. Previously, if the 

trial court ordered the State to provide discovery, the terms of the order would control as 

to what was to be produced, as well as how and when. As amended, responsive discovery 

is now to be provided “as soon as practicable,” which has a connotation of a duty of the 

prosecutor to timely search out discovery that may be in the State’s custody, constructive 

possession, or control and then to provide it to the defendant in a timely manner in 

response to a discovery request. It 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. Rather, once discovery of an item is requested, 

the State now has an affirmative duty to search for the item and produce it to the 

defendant in a timely manner. While there is no hard and fast time period like the 30-

day due date in civil cases set forth in the rules of civil procedure, and there should not 

be because the legislature did not set one, a failure to at least inquire about the existence 
State v. Heath Page 10

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". The 

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. The trial court has great discretion in determining the appropriate 

remedy depending on the circumstances of each case. 

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. We thus find that the trial court's decision, based on the information 

it had before it at the time of its ruling, did not constitute an abuse of discretion because 

the evidence was not produced "as soon as practicable."2

Further, we find that the State's contention that Heath was required to seek a 

2 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. Because this is a fact-dependent inquiry, the result 

might be different if the prosecutor had established what she had done to try to find what evidence was in 

the State's possession prior to May of 2018. Additionally, the Legislature has recently enacted Code of 

Criminal Procedure article 2.1397, which places an affirmative duty on the law enforcement agency that 

files a case with a prosecuting office to produce all information that would be required to be produced 

pursuant to article 39.14(a), seemingly in recognition that the duty to produce discoverable information 

extends beyond the prosecutor to all areas of law enforcement. See Acts 2021, 87th Leg., ch. 509 (S.B. 111), 

§ 1, eff. Sept. 1, 2021, codified as TEX. CODE CRIM. PROC. Ann. art. 2.1397.
State v. Heath Page 11

continuance to avoid a waiver of his complaint is without merit. A continuance could 

have been an appropriate remedy within the trial court's discretion; however, since the 

trial court granted Heath's motion and excluded the evidence, we find that a motion for 

continuance was not necessary in this circumstance.3 We overrule the State's sole issue.

CONCLUSION

Having found no abuse of discretion, we affirm the trial court's order granting the 

motion to suppress evidence.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Smith, and 

Justice Wright4

Affirmed

Opinion delivered and filed February 16, 2022

Publish

[CR25] 

3 Moreover, the State had suffered an adverse ruling by the trial court and therefore the issue was preserved 

by the State, notwithstanding that it did not move for a continuance.

4 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by 

assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.