IN THE

TENTH COURT OF APPEALS

No. 10-18-00253-CR

IRENE RODRIGUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. D38033-CR

CONCURRING OPINION

This is one of the top five most important Michael Morton Act cases this Court has 

decided. The Court holds that a motion for continuance is required to preserve error for 

the State’s failure to produce requested discovery. I disagree. Specifically, the Court 

holds that Appellant waived the complaint about the State’s failure to timely produce a 

document, an arrest warrant, specifically requested in discovery pursuant to article 39.14 

because, although its use was objected to and the objection was overruled, Appellant’s 
Rodriguez v. State Page 2

counsel did not then request a continuance when the State sought to introduce the 

document into evidence. I respectfully disagree that a motion for continuance should be

required to preserve error of this issue. However, only because the trial court’s error was 

harmless, I concur in the Court’s judgment which affirms the trial court’s judgment of 

conviction.

The State first argued at trial that the document was not requested in discovery. 

This argument vaporized when the Appellant’s attorney directed the trial court’s 

attention to a letter sent to the State that was already part of the record in connection with 

a prior discovery hearing wherein production of the document was specifically 

requested.

The State then argued that it produced the document on the date that it was 

received by the State. The date the document was received by the District Attorney is not 

necessarily the relevant date. The State argued that it did not have possession, custody, 

or control of the document prior to the first day of trial. It is not that the State did not 

know or think it was going to need the document. After all, the District Attorney had 

already gone to the trouble to get a certified copy of the document from the trial court 

clerk. To make this argument, the State argues that the District Clerk is not included in 

the definition of “the State,” for purposes of having possession, custody, or control of the 

document. I will pass on further discussion of the unreasonableness of that argument.

And under the Court of Criminal Appeals’ recent decision in Watkins, there is no 

question that the document was material as therein defined. Watkins v. State, 619 S.W.3d 

265, *2-3 (Tex. Crim. App. 2021). 
Rodriguez v. State Page 3

But then we get to the part of the analysis that is critical to whether the adoption 

of the Michael Morton Act is going to have any lasting meaning for the fair and efficient 

prosecution of criminal trials in Texas. There is a reason that the Michael Morton Act was 

passed by the legislature. Many, including the State’s high court for criminal 

proceedings, believed it was a sea change for criminal discovery in Texas. See Watkins v. 

State, 619 S.W.3d 265, *15-21 (Tex. Crim. App. 2021). But the resistance to change has 

been fierce. The State here demands a request to produce the specific item. Done. The 

State here demands an objection to using the untimely produced item at trial. Done. The 

State here demands that the defendant must request a continuance. Appellant did not 

make a motion for continuance, a motion which has to be in writing and sworn to, see

TEX. CODE CRIM. PROC. arts. 29.03; 29.08; so, according to the Court and the State, the issue 

is not preserved for appellate review. The State and the Court rely on the line of cases 

which hold that to preserve an issue of surprise, the defendant must request a 

continuance. I do not believe that article 39.14 requires a request for a continuance to 

preserve error in this circumstance.

The traditional rule regarding preservation is that the party making the complaint 

must bring the issue to the trial court’s attention at a time and in a manner that the trial 

court can correct the problem. See TEX. R. APP. P. 33.1; Lankston v. State, 827 S.W.2d 907, 

909 (Tex. Crim. App. 1992). It is sometimes expressed that the defendant must pursue 

the issue until the defendant receives an adverse ruling. See Fuller v. State, 253 S.W.3d 

220, 232 (Tex. Crim. App. 2008). In this instance, Appellant did that. Appellant objected 

to the State’s use of the document that was not timely produced in response to a specific 
Rodriguez v. State Page 4

request. The objection was overruled. At that point, Appellant has suffered an adverse 

ruling. Why should a further complaint or objection or motion be required to preserve 

the complaint for appellate review? If Appellant was entitled to the discovery, if the 

discovery item was not timely produced, if there was a proper objection to its use at trial, 

and on appeal, if Appellant complains about the trial court allowing the State to use the 

late produced document to which a proper objection was made and overruled, why do 

we, as the appellate court, not simply evaluate the trial court’s ruling for error, and for 

this discussion presuming that it is error, then proceed to the harm analysis? I do not 

know.

As stated, the Court and the State rely on those cases in which the defendant 

asserts some surprise.1 But this is not a “surprise” case. This is a statutory discovery 

violation case. Moreover, Appellant is not asserting surprise in the traditional sense; so 

the cases about something surprising happening during trial are not on point. The line 

of cases regarding surprise and the need to request a continuance should be limited to 

their facts. Surprises happen. Witnesses change their testimony. Witnesses die. Trial 

exhibits are destroyed in a flood or fire. Any number of surprises may happen. A trial 

without some surprise is as rare as a unicorn. But the State is statutorily obligated to 

produce requested discovery as soon as practicable. TEX. CODE CRIM. PROC. art. 39.14(a). 

If there is a “surprise,” it is only because Appellant failed to anticipate the late production 

of documents by the State. And when that does happen, it is certainly no surprise to the 

1 Also cited is an unpublished case from the Second Court of Appeals that relies on the same line of 

“surprise” cases. See Byrd v. State, No. 02-15-00288-CR, 2017 Tex. App. LEXIS 1773, at **12-13 (Tex. App.—

Fort Worth Mar. 2, 2017, no pet.) (mem. op., not designated for publication).
Rodriguez v. State Page 5

State. In this case, the State was certainly not surprised. The State was ready to go with 

a certified copy of the document so that they would not even need a sponsoring witness. 

Moreover, if the “surprise” line of cases requiring a continuance would otherwise 

be applied to preserve error, in light of the Court of Criminal Appeals’ method of 

resolving Watkins, it is time to shift the relevant inquiry to what is required under the 

current version of article 39.14. If the only consequence for the State’s failure to timely 

produce a requested document is that, once the defendant objects and the objection is 

overruled, the defendant must request a continuance, which if granted might cause a 

delay in the proceedings, then the State has suffered no real consequence of its failure. 

The problem is that if timely production would have modified trial strategy, including 

the analysis of the advisability of accepting a plea recommendation that is no longer on 

the table, the harm caused by the late production is irreversible.2 

The bottom line is that article 39.14 is not going to have the impact the legislature 

intended if there is no consequence of failing to comply with it other than a momentary 

delay during trial (which the jury will likely hold against the defendant for making the 

objection rather than the State for failing to timely produce the document). Requiring a 

motion for continuance and then incurring a brief delay of the trial is not the type of

consequence that will affect the desired change. 

I would hold that, like almost every other alleged error, Appellant is entitled to a 

2 The only possible way to avoid this type of prejudice to Appellant would be to put Appellant back in the 

position Appellant would have been in had the document been timely produced. If at the time that it 

should have been produced there was a plea offer on the table, that plea offer would have to be put back 

on the table.
Rodriguez v. State Page 6

review of the issue; in essence, Appellant has not waived appellate review, as long as 

Appellant has pursued the issue to an adverse ruling by motion or objection. In this case,

there is no question that the issue was pursued by Appellant to an adverse ruling.3 Thus, 

I would proceed to review the issue on its merits, and having done so, I would hold that 

the error allowing the State to use the untimely produced document was harmless. 

Because the Court holds that appellate review of the issue was waived by the failure to 

request a continuance even after a proper objection was overruled, I cannot join the 

Court’s opinion. However, after my independent analysis of the error, I have determined 

under the relevant rules and cases for harm analysis that the error was harmless and,

therefore, respectfully concur with the Court’s judgment which affirms the conviction.

TOM GRAY

Chief Justice

Concurring opinion delivered and filed May 20, 2021

Publish

3 Appellant has argued that this is the type of error described above that a mere continuance could never 

cure. So, even in some cases, if a continuance is required for preservation, it should not be required in a 

situation where the alleged harm could not have been cured by merely having some additional time to 

prepare or respond to the late production.