IN THE

TENTH COURT OF APPEALS

No. 10-16-00377-CR

RALPH DEWAYNE WATKINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. D36507

O P I N I O N

Ralph Watkins appeals from a conviction for the offense of possession of a 

controlled substance of four grams or more but less than 200 grams. TEX. HEALTH &

SAFETY CODE ANN. § 481.115(d) (West 2010). Watkins complains that the trial court 

abused its discretion by admitting evidence in the punishment phase of the trial that had 

not been provided pursuant to Article 39.14 of the Code of Criminal Procedure and that 

the trial court erred by ordering Watkins to pay restitution to DPS and assessing 
Watkins v. State Page 2

attorney's fees. Because we find that the judgment should be reformed to delete the order 

of restitution and court appointed attorney's fees but find no other reversible error, we 

affirm the judgment of the trial court as reformed.

ARTICLE 39.14

In his first issue, Watkins complains that the trial court erred by admitting exhibits 

during the punishment phase of his trial that had not been produced by the State prior to 

trial in violation of Article 39.14(a) of the Code of Criminal Procedure. Article 39.14 was 

amended effective January 1, 2014 to expand the scope and availability of discovery 

required to be produced by the State in criminal proceedings. See Act of May 14, 2013, 

83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106, 106 (eff. Jan. 1, 2014) (codified at TEX.

CODE CRIM. PROC. art. 39.14). The evidence at issue in this proceeding is punishment 

evidence in the form of pen packets and booking sheets, which were used by the State to 

prove the enhancement paragraphs in the indictment and other extraneous offenses that 

had been committed by Watkins.

Article 39.14(a) states that upon a timely request the State must provide "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 
Watkins v. State Page 3

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." TEX. CODE CRIM. PROC. ANN. art. 

39.14(a) (emphasis added). At trial, the State argued that the evidence was not subject to 

Article 39.14 because it was punishment evidence, but concedes in this appeal that Article 

39.14 applies to punishment evidence. Rather, the State now argues that because the 

documents in question pertained to extraneous offenses, they were not discoverable 

because extraneous offense evidence is not "material to any matter involved in the action." 

See id. We are not willing to agree with the State's assertions that Article 39.14 does not 

apply to punishment evidence or that it would never apply to extraneous offenses.1 

If we were writing on a clean slate to interpret what evidence is "material to any 

matter," we would be inclined to construe this phrase, at a minimum, to include any 

evidence the State intends to use as an exhibit to prove its case to the factfinder in both 

the guilt and punishment phases of a trial. We do not write on a clean slate. The phrase 

at issue, "that constitute or contain evidence material to any matter involved in the 

action," was present in Article 39.14 before it was amended by the Michael Morton Act. 

See Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106, 106 (eff. Jan. 

1, 2014) (codified at TEX. CODE CRIM. PROC. art. 39.14). The phrase was not modified or 

 

1 The State also argues that Article 39.14 is in conflict with the notice provisions of Article 37.07 and Rule of 

Evidence 404(b). The State's argument continued by arguing that because the Rule 404(b) and Article 37.07 

disclosures are more specific than Article 39.14 that they control over the production required by Article 

39.14. Because we resolve this issue on another basis we do not reach and resolve this argument but nothing 

herein should be construed to mean that we agree with that aspect of the State's arguments.
Watkins v. State Page 4

defined by the Legislature when it passed the amendments to Article 39.14. What is 

"material" had been subject to substantial judicial interpretation prior to the debate and 

passage of the Michael Morton Act.2 Thus, applying well-established precedent from the 

Court of Criminal Appeals, by which this Court is bound, we are constrained to hold that 

the definition or standard we must use to determine whether the objectionable evidence 

was material is the same after the passage of the Michael Morton Act as it was before 

passage, regardless of what the Legislature may have thought or intended to accomplish.3 

Therefore, we hold that in order to establish that requested evidence is material, it 

is necessary that a defendant must provide more than a possibility that it would help the 

defense or affect the trial. See Branum v. State, 535 S.W.3d 217, 224-25 (Tex. App.—Fort 

Worth 2017, no pet.) (citing U.S. v. Agurs, 427 U.S. 97, 112 (1976)). Materiality for purposes

of Article 39.14(a) means that "there is a reasonable probability that had the evidence been 

 

2 The State Prosecuting Attorney, in its amicus brief filed with this Court, discussed the many difficulties 

presented in interpreting the statute as amended, especially relating to the definition of materiality and 

how the definition should not mirror the Brady definition used by the Court of Criminal Appeals and other 

Courts both prior and subsequent to the passage of the Michael Morton Act. We agree that it would seem 

that something different was intended by the Legislature. However, because this Court is constrained to 

follow precedent established by the Court of Criminal Appeals, we are unable to follow the SPA's wellreasoned and sound arguments.

3 This is further shown in that several decisions from other courts of appeals regarding materiality pursuant 

to Article 39.14 have used the same definition for materiality subsequent to the passage of the Michael 

Morton Act in memorandum opinions, which require that the issues are settled, or in unpublished 

opinions, which have not been designated for publication and have no precedential value. TEX. R. APP. P. 

47.4, 47.7; See, e.g., In re Hawk, No. 05-16-00462-CV, 2016 Tex. App. LEXIS 5760, 2016 WL 3085673, at *2 (Tex. 

App.—Dallas May 31, 2016, orig. proceeding) (mem. op.); In re Hon, No. 09-16-00301-CR, 2016 Tex. App. 

LEXIS 11313, 2016 WL 6110797 (Tex. App.—Beaumont Oct.19, 2016, no pet.) (mem. op., not designated for 

publication); Meza v. State, No. 07-15-00418-CR, No. 07-16-00167-CR, 2016 Tex. App. LEXIS 10690 (Tex. 

App.—Amarillo Sept. 29, 2016, pet. ref'd) (not designated for publication). 
Watkins v. State Page 5

disclosed, the outcome of the trial would have been different." Meza v. State, No. 07-15-

00418-CR, No. 07-16-00167-CR, 2016 Tex. App. LEXIS 10690 (Tex. App.—Amarillo Sept. 

29, 2016, pet. ref'd) (not designated for publication) (citing Evans v. State, No. 07-07-0377-

CR, 2009 Tex. App. LEXIS 150, at *7 (Tex. App.—Amarillo Jan. 9, 2009, pet. ref'd) (mem. 

op., not designated for publication); see Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. 

App. 2012); Quinones v. State, 592 S.W.2d 933, 940-41 (Tex. Crim. App. 1980).4 

At issue are exhibits providing documentary evidence of extraneous offenses that 

had resulted in convictions and incarceration that the State was using in part to establish 

the enhancement paragraphs of the indictment. Other documentary evidence of 

extraneous offenses was admitted in support of the State's pursuit of a lengthy sentence. 

The State had provided notice of its intent to produce evidence of these convictions both 

in its Article 37.07 notice as well as the enhancement paragraphs in the indictment itself. 

Watkins pled true to the enhancements at the punishment hearing. We do not believe 

that even if the exhibits had been produced that there is a reasonable probability that the 

outcome of the trial would have been different, or that the sentence Watkins received 

would have been reduced. Thus, under the standard for determining materiality by 

 

4 An aspect of this analysis that has not received much attention is the difference in perspectives based on 

when and by whom the determination of what constitutes material evidence is made. In the Brady context, 

the determination is made by an appellate court looking back at the entirety of the trial as it developed. 

But it might seem that when determining what evidence is "material," discovery should be examined from 

the perspective of the defendant in preparation for trial, including plea offer evaluations. And the 

determination of "materiality" is made by the State at least preliminarily. What is "material" in that context 

and from the defendant's vantage point may well be different from what may later be determined to be 

material to the result of the trial.
Watkins v. State Page 6

which we are bound, we do not find that the exhibits were material. Accordingly, we do 

not find that the trial court abused its discretion in admitting the exhibits that were not 

produced pursuant to Article 39.14(a). We overrule issue one.

RESTITUTION TO DPS AND ATTORNEY'S FEES

In his second issue, Watkins complains that the judgment is erroneous because it 

includes an order that restitution be paid to the Department of Public Safety which was 

not referenced in the trial court's oral pronouncement of the sentence. In his third issue, 

Watkins complains that the judgment is erroneous because it includes an order for 

Watkins to reimburse Navarro County for his court-appointed attorney's fees which were 

specifically excluded in the trial court's oral pronouncement of his sentence due to 

Watkins' indigence. The State agrees that the judgment erroneously includes these 

assessments. When the oral pronouncement of sentence and the written judgment vary, 

the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 

2004). Therefore, we agree that the trial court's judgment is erroneous. We will reform 

the judgment to delete the sum of $180.00 in restitution to the Department of Public Safety 

and the "special findings and orders" in its entirety that assesses the DPS fee and requires

Watkins to reimburse Navarro County for his court-appointed attorney's fees. We 

sustain issues two and three.
Watkins v. State Page 7

CONCLUSION

Having found that the judgment should be reformed to delete the order of 

restitution and court-appointed attorney's fees but no other reversible error, we reform 

the judgment to delete the order of restitution in the amount of $180.00 payable to DPS 

and the statement "Reimburse Navarro County for Court Appointed Attorney Fee" and 

otherwise affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed as reformed

Opinion delivered and filed July 25, 2018

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