Criminal Discovery in Texas
Guest Blog Post by Cory Roth, Attorney in Houston, Texas.
Criminal Discovery, What Does It All Mean?
When you hear the word, “discovery,” a few things might pop into your mind. For example, I think of the Discovery Channel, world explorers such as Christopher Columbus, and criminal discovery. Criminal discovery is the only one of my thoughts that makes my spine shiver, but the reality is that the basics of criminal discovery are pretty exciting and simple thanks to the Michael Morton Act and Article 39.14 of the Texas Code of Criminal Procedure.
I feel that my clients deserve to know what is going on behind the scenes, which is why I have teamed up with Terrence Marsh to write this article, and educate you about the basics of criminal discovery.
For starters, what is discovery?
Discovery is the process by which a defendant seeks to learn what evidence the Government has against the defendant. The fact of the matter is that Defendants are greatly disadvantaged in many ways in criminal cases. The Government has the man power, the money, and the resources to gather all the evidence it can against the Defendant. Seriously, the Government has the prosecutor’s office, prosecutors, district attorney investigators, the police, the crime lab, the jail, the evidence locker, the statements, the recordings, and the ‘expert witnesses.’ In years past, finding out what was in the government’s possession was very difficult. Even with Brady, which requires prosecutors to turn over evidence which is favorable to the defense, and impeachment evidence, prosecutors were hiding evidence left and right. It’s worth noting that many prosecutors, such as the Infamous Kelly Siegler don’t know what Brady evidence is.
Then came the Michael Morton Act, which was passed to create more transparency and allow the Defendant to know what evidence the State is relying on. The Michael Morton Act was passed in honor of Michael Morton, and other exonerees who were wrongly convicted as a result of prosecutors withholding favorable evidence.
Through the discovery process, Defendants are allowed to request the Government to produce (make available) and allow the Defendant to inspect, copy, scan, photograph (the Government frequently makes copies for the Defendant of most of the requested items) “any offense report, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers… that are in the possession, custody, or control of the State or its (agents).” While Article 39.14 is pretty good, it’s not perfect. I have attached pictures below of the standard Discovery Request I file in every criminal case at my first appearance. (Thank you to 39.14 author and my mentor Troy McKinney for sharing this with me.)
The information that I request in discovery must be made available to the defense lawyer “as soon as practicable.” In my personal experience, getting my hands on offense reports, dashcam videos, bodycam videos, and witness statements “as soon as practicable” is hit and miss. Sometimes the offense report is available at the first appearance, but it takes months for the other discoverable items to be disclosed. Why does it takes so long? Usually because the prosecutors are lazy, disorganized, and there is a lot of turnover, and not because they are trying to hide the most basic bases of the case.
I want you to know that while you are allowed to look at all of the discoverable items, you are only allowed to keep a copy of your own witness statement.
The Texas criminal discovery statute also reiterates Brady by stating that “the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”
Finally, the Government’s duty under 39.14 does not end at a guilty plea or conviction at trial. The government must promptly disclose any “Brady” information as cited in the paragraph above, even if it learn the information after trial or plea.
I have heard people talk about subpoenas and Freedom of Information Act Requests. Is that part of Discovery?
No, subpoenas and Freedom of Information Act Requests, and its’ Texas counterpart, are not part of discovery. Discovery is arguably limited to what is described in the statute. Subpoenas are served by the Defendant on people, agencies, and entities that have information that you need. A subpoena is a court order to appear at court on a specific date to testify, or turn over documents requested prior to that date. A FOIA request is similar to a subpoena, but it is governed by different rules, and the attorney general can intervene. I have had great success getting what I want when I file a Discovery Request, Subpoena, and FOIA request all at the same time. It is painstaking and can be expensive, but it provides my best chance of success.
Why is Discovery so Important?
For me, personally, discovery is so important for several reasons. When a client walks into my office and tells me his story, I am hearing our story of innocent. When I get a police report, witness statements, photos, and videos, I learn the government’s theory and story of guilt. Without discovery, a criminal defense lawyer would not be able to build a case very effectively. We wouldn’t know what to cross examine each witness on, we wouldn’t know the strengths and weaknesses of the government’s case, we wouldn’t know the identity of all the actors involved, and I wouldn’t know best how to keep the bad evidence out and get the good evidence in.
When hiring a lawyer, make sure they are familiar with Texas Discovery.
About the Author: Cory Roth, Attorney in Houston, Texas. Cory’s Blog can be found here at, Behind the Bar Texas Law Blog. Cory Roth and I have been friends and colleagues for over a year now. Cory and I attended the Trial College for Criminal Defense Lawyers back in 2013. Recently, Cory called me up on the phone to talk about writing guest blog posts for one another. Cory practices mostly out of Houston, Texas and he swings for the fence with every one of his clients.
He gets results. Period. If you follow his blog, you’ll see that he gets dismissals regularly and isn’t afraid to go to trial. If the State’s case is weak and has flaws, Cory will shine a spotlight on them. Cory is the type of lawyer that we need fighting for our rights day in, and day out.