EX PARTE DIXON v. << (2026)

OPINION

Appellant John Dixon was charged with murder. Shortly after a trial on those charges began, the trial court granted appellant's motion for mistrial. Before the new trial started, appellant filed a writ of habeas corpus alleging double jeopardy. The trial court denied appellant's writ.

In a single issue on appeal, appellant alleges that the trial court abused its discretion by denying his pretrial writ of habeas corpus. Concluding that the trial court could have reasonably determined that the prosecutorial misconduct was not committed with the specific intention of avoiding an acquittal or goading appellant into moving for a mistrial, we affirm the ruling of the trial court.

I. Background

Appellant was indicted for the murder of his common-law wife, Yvonne Zavala. The State's primary theory was that appellant “literally squeezed the life out of [Zavala] and staged it to look as if she hung herself” with an extension cord from the tree outside of their mobile home. The State was represented at trial by Assistant District Attorneys Sunni Mitchell, Johnny Wen, and Mark Hanna.

A. The three witnesses at trial

The State's first witness was Deputy Jason Kelly, one of the first responding officers to the scene. When he arrived at the scene, Zavala had already been removed from the tree and was being attended to by several paramedics attempting to intubate her. Deputy Kelly testified that appellant was sitting on the stairs to his mobile home and smoking a cigarette with a “calm demeanor.”

The State next called Elizabeth Kramer, one of the paramedics at the scene. In her efforts to intubate Zavala at the scene, she observed a ligature mark across the front of Zavala's neck and noticed that all of Zavala's surrounding neck tissue was swollen. Kramer testified that despite having worked as an EMT for 25 years and having seen thousands of suicides and “hanging cases,” she had never seen so much swelling before.

The State's third witness was Stephen Pustilnik, the chief medical examiner in Fort Bend County at the time. Pustilnik testified that the medical examiner's office was notified of a “decedent, 44 years old, and that there was suspicion that it was a homicide or a suicide.” Pustilnik claimed that he had investigated numerous hangings throughout his career, including hangings with extension cords. In his opinion, Zavala's injuries appeared inconsistent with a hanging; instead, it appeared Zavala's death was a homicide caused by strangulation. One of the biggest factors that led Pustilnik to this conclusion was the nature of the marks on Zavala's neck. In a typical suicide by hanging, Pustilnik claimed that one would expect to see upward slip abrasion around the neck and above the Adam's apple area and up towards the ears as a result of the body sinking down against the object used in the hanging. However, Zavala's injuries were all below her Adam's apple area and none of the injuries had upward slip abrasion. Thus, her marks did not appear to have occurred from a suspension hanging; they were more consistent with a garrote: an “item being pulled straight back, like from the neck straight back.” Pustilnik also observed that based on marks found on her neck, it is possible that appellant held a knife to her neck prior to strangling her.

During cross-examination of Pustilnik, appellant's counsel approached the bench and informed the trial court that he wanted to impeach Pustilnik's credibility with: (1) a pending federal lawsuit against him because he would not sign off on a death certificate, despite a different medical examiner opining the death was a suicide, because Pustilnik believed it was a homicide; (2) information that he had been disciplined in Alabama for professional misconduct related to an error he committed during an autopsy; and (3) information regarding purported sexual harassment, retaliation, and dishonesty Pustilnik committed during his previous jobs. Mitchell and Hanna indicated that they believed the Fort Bend County District Attorney's Office's (“FBCDAO”) Brady database on Pustilnik had already been delivered to appellant. The trial court recessed for the day to allow the State to investigate whether the State had delivered its Brady file on Pustilnik. That evening, appellant received a Brady file from the State.

The next morning, the State provided appellant with two more Brady documents it had received from the Lubbock County District Attorney's Office regarding Pustilnik. When asked why appellant had not received this information before trial, Hanna stated that he believed the prosecution had already given the information to appellant. When the trial court once again asked why the State did not disclose the evidence, Mitchell responded, “I guess because we're human and errors get made, Judge.” The trial court recessed for the day and the trial was continued to give appellant time to review the Brady evidence.

B. The Brady file on Pustilnik

The FBCDAO's Brady file on Pustilnik included two letters written by Randall Sims, the former elected 47th Judicial District Attorney. The first letter was addressed to a defense attorney who was representing a client in a case involving Pustilnik:

Included with this brief letter are numerous documents disclosing Brady material regarding forensic pathologist Dr. Stephen Pustilnik․ Also included is a PowerPoint and some documentation on a Potter county case where we believe the evidence clearly establishes an accident has occurred but Dr. Pustilnik has identified the case to be a homicide.

There are three other cases included involving Dr. Pustilnik from other jurisdictions. Most of this was found searching the internet. There is more out there should you desire to look. This was more than sufficient for me to take action now rather than to continue gathering more information.

The other letter was addressed to four sitting judges in Potter County and it detailed Sims's lack of faith in Pustilnik's ability to perform autopsies.

The FBCDAO's Brady file on Pustilnik also contained the PowerPoint referenced by Sims. The PowerPoint went into more detail regarding the case in which Pustilnik maintained his theory that the victim was murdered, despite law enforcement strongly believing that the death was accidental.

Also within the FBCDAO's Brady file were several news articles regarding Pustilnik's involvement in other cases in Texas and Alabama. In one case in Alabama, the trial court granted defendant's motion for new trial because Pustilnik gave opinions during trial that were different than what was shared during discovery. In another Alabama case, Pustilnik was disciplined because he failed to notice a bullet lodged in the victim's neck during his autopsy; furthermore, once the bullet was revealed in a subsequent autopsy, Pustilnik maintained his theory that the victim died due to asphyxia.

C. The motion for mistrial

Although trial was set to reconvene on May 13, appellant filed a motion for mistrial on May 9, which was heard on May 10. Even though appellant had received the Brady file mid-trial, the State gave several reasons why a mistrial was unnecessary, including: (1) the continuance had given appellant enough time to research the additional information; (2) appellant was already aware of the majority of the information in the Brady file; (3) the record was clear that there was not any intentional or willful act by the State in its untimely disclosure of the Brady file; and (4) adequate alternatives existed here to granting a mistrial, such as keeping the jury and inquiring into their availability for the upcoming weeks. Meanwhile, appellant argued that it would be better to just start over because the current trial had not even progressed beyond the third witness. The trial court granted the motion for mistrial and set the case for trial in September 2024.

In August 2024, appellant filed his pretrial writ of habeas corpus alleging double jeopardy. His request for habeas relief was heard in November 2024.

D. The habeas hearing

At the hearing, the State called the following witnesses to testify.

1. Sunni Mitchell

Mitchell testified that Wen was “in charge of discovery,” including making Brady disclosures. Even though Mitchell was first chair, she did not oversee most of the work performed by Wen and Hanna or perform any independent verification that the Brady information was delivered. Furthermore, because other prosecutors were handling the case before Mitchell became involved, she stated that she believed the Brady material had already been handed over. Although Mitchell acknowledged that Pustilnik was “an important witness,” Mitchell claimed that Pustilnik was just “one piece” of the puzzle. Even if Pustilnik had been discredited, she believed that the State had enough evidence to obtain a murder conviction against appellant by a “very comfortable ․ [and] wide” margin.

According to Mitchell, Pustilnik's testimony at trial was consistent with his opinions in the autopsy report and the conversations she had with Pustilnik pre-trial, even though his theories about the serrated knife and the garroting were not specifically detailed in the autopsy report. But Mitchell testified that was normal; for example, in a gunshot-wound case, a medical examiner is “not going to say gunshot by .44 caliber or Glock or anything like that. They're just going to say gunshot wound.” Thus, she was not surprised by Pustilnik's testimony.

Mitchell was generally aware that Pustilnik had been fired from the Galveston County's Medical Examiner's Office for sexual harassment, but she was unaware of any other specific details regarding Pustilnik's past. Mitchell acknowledged that she was aware that FBCDAO possessed a Brady file for Pustilnik, but she had never looked at the file and mistakenly believed that Wen had already disclosed it to appellant.

Mitchell testified that it was extremely rare for a medical examiner to be in a Brady database. She also asserted that she was not trying to provoke the defense into moving for mistrial and that the State had no desire for a mistrial to be granted. In her opinion, she did not believe the trial was headed for an acquittal, even after learning of the extent of the impeachment issues.

Mitchell also testified that once appellant notified the State that he had retained Dr. Lee Ann Grossberg as an expert on forensic pathology, she contacted Dr. Kathyrn Pinneri “to see if she would be a potential rebuttal expert.” According to Mitchell, Pinneri was not retained out of any concern regarding Pustilnik's testimony; rather, she only intended on presenting Pinneri if Grossberg testified.

2. Johnny Wen

Although Wen had been a prosecutor for 10 years, this was the first murder trial that Wen had tried before a jury. Wen testified that he searched the FBCDAO's database for Brady files on law enforcement officers and disclosed at least 10 Brady files to appellant related to those officers, but “[i]t didn't dawn upon [him] that the chief medical examiner would be a part of that list or database.” Additionally, he testified that neither Mitchell nor Hanna informed him of Pustilnik's Brady file and that he never thought a person with a Brady file would be hired as the chief medical examiner.

During the writ hearing, defense counsel David Kiatta asked if Wen had met with or spoken with any of his supervisors to talk about his writ hearing testimony, suggesting that Wen was the State's “scapegoat.” Wen expressed his belief that he was not the State's scapegoat and he claimed that he did not meet beforehand with Hanna or Mitchell to discuss his testimony at the hearing.

Wen mirrored Mitchell's view that the trial was going as expected and that Pustilnik had testified as the State had anticipated. Wen also asserted that the State did not want a mistrial and that it had no intention of provoking appellant to move for a mistrial. To the contrary, the State had about 17 witnesses ready to testify, “with many of them waiting in our office.”

3. Mark Hanna

Because Hanna was “not a fan of [Pustilnik,]” it was decided that Mitchell would handle Pustilnik as her witness. Hanna had been aware of FBCDAO's Brady file on Pustilnik for several years, but given the “turnover and the years of experience and the kind of cases people handle,” Hanna opined that not all prosecutors in the office may have been aware of Pustilnik's Brady file. He did not make any Brady disclosures regarding Pustilnik because he thought Wen was taking care of it. When the Brady issue was raised at trial, Hanna testified that he was under the impression that the Pustilnik file had already been disclosed. According to Hanna, the State's failure to timely file Pustilnik's Brady file was simply a mistake. He did not desire for a mistrial to be granted. In his opinion, the trial was going well for the State, and appellant's cross-examination of Pustilnik had been largely anticipated.

4. David Kiatta

Appellant's trial counsel, David Kiatta, also testified. He was retained by appellant's family the night Zavala's body was discovered. Kiatta admitted that prior to trial, he was aware of the sexual harassment allegations against Pustilnik, but he claims that he was unaware of the federal lawsuit against Pustilnik. Kiatta also acknowledged that it is uncommon for a chief medical examiner to have a Brady file. According to Kiatta, the State was very diligent in providing Brady notices related to several law enforcement officers and he received Brady information on Pustilnik “fairly quick” once the State realized that the FBCDAO's Brady file on Pustilnik had not been turned over yet.

Kiatta acknowledged that throughout trial and the motion for mistrial, he never averred that the State had withheld information intentionally; although he had vague suspicions, he did not want to make such heavy allegations without more evidence. But by the time of the writ hearing, his suspicions had turned into a belief that the State had intentionally provoked appellant into moving for a mistrial for a “combination of reasons”:

[The State] fought us tooth and nail over things that I firmly believe they shouldn't have. Continuances, asking for more time, giving us adequate time to research stuff, even saying we don't have a file. We do have a file that I heard today. The fact that when I watched Dr. Pustilnik testify about a serrated knife on the complainant's neck, I thought I noticed a visible shock reaction come from Ms. Mitchell[.]

According to Kiatta, Pustilnik's theory about the knife was inconsistent with information divulged pretrial and in the autopsy report. However, Kiatta also conceded that most autopsy reports do not reflect the opinions of the medical examiners on the specific mode of death, it just reflects their observations.

After the hearing, the associate judge recommended that appellant's request for habeas relief be denied. On December 18, 2024, the presiding judge ratified, approved, and accepted all actions, findings of fact, conclusions of law, recommendations and orders of the associate judge, and ordered denial of all requested habeas relief. This appeal ensued.

II. Double Jeopardy

In his sole issue, appellant contends that the trial court erred by denying his pretrial writ of habeas corpus alleging double jeopardy because the State intentionally withheld evidence to provoke appellant into moving for a mistrial.

A. Standard of review

A trial court's decision to deny habeas relief is reviewed for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). A trial court does not abuse its discretion if its ruling lies within the zone of reasonable disagreement. See Wheeler, 203 S.W.3d at 330.

In reviewing the trial court's decision to grant or deny habeas corpus relief, a reviewing court views the evidence in the light most favorable to the trial court's ruling. Id. at 324. “We afford almost total deference to a trial court's factual findings in habeas proceedings, especially when those findings are based upon credibility and demeanor.” Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004); see Sandifer v. State, 233 S.W.3d 1, 3–4 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (deferring to trial court's findings that the prosecutor made “a simple mistake” and had no intent of goading defense into asking for a mistrial).

B. Applicable law

A retrial after a defense-requested mistrial is jeopardy-barred only when the prosecutorial “conduct giving rise to a successful motion for mistrial was intended to provoke [or goad] the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting the federal standard announced in Oregon v. Kennedy).

In Wheeler, the Court of Criminal Appeals set out the following list of nonexclusive factors to assist trial and reviewing courts in assessing the prosecutor's state of mind and whether the State intentionally provoked the defendant into moving for a mistrial or sought to avoid acquittal:

1) Was the misconduct a reaction to abort a trial that was “going badly for the State?” In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?

2) Was the misconduct repeated despite admonitions from the trial court?

3) Did the prosecutor provide a reasonable, “good faith” explanation for the conduct?

4) Was the conduct “clearly erroneous”?

5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?

6) Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct?

Wheeler, 203 S.W.3d at 323–24.

C. Analysis

To determine whether the trial court abused its discretion, we will review the Wheeler factors as applied to this case.

1. The misconduct was not a reaction to a trial that was going badly for the State (factor 1)

Appellant contends that an acquittal would have been reasonably plausible had the defense received the Brady file on Pustilnik prior to trial because the “defense could have thoroughly attacked Dr. Pustilnik's credibility[.]” Appellant further claims that the State designated Pinneri as a witness to bolster Pustilnik's credibility, further suggesting that the State was concerned that an acquittal was probable because the State believed Pustilnik's testimony was unreliable.

However, viewing the record in the light most favorable to the trial court's ruling, Mitchell testified that Pinneri was retained as a rebuttal witness, not out of a concern regarding the strength of Pustilnik's testimony. Mitchell, Wen, and Hanna also testified that they believed the trial had been going well for the State. Additionally, we note that it is relatively difficult to conclude that the misconduct in this case—the State's failure to timely deliver the FBCDAO's Brady file on Pustilnik—was a reaction to a trial that was going badly for the State because the misconduct occurred before trial even began. While theoretically not impossible, the trial court could have weighed the credibility of the witnesses and determined that such a situation was unlikely here.

This factor weighs in favor of the State.

2. The misconduct was not repeated after admonitions from the trial court (factor 2)

Here, the misconduct was not repeated. Once the State discovered that the Brady file on Pustilnik had not been disclosed, it quickly delivered the file to appellant. The trial court did not admonish the State more than a single time because the State immediately remedied the misconduct. Cf. Ex parte Masonheimer, 220 S.W.3d 494, 507–08 (Tex. Crim. App. 2007) (second retrial was barred by double jeopardy because the State repeatedly withheld witness statements from the defendant in two different trials).

Thus, this factor weighs in favor of the State.

3. The prosecutors provided reasonable, good-faith explanations for the misconduct, and there was a legally and factually plausible basis for the misconduct (factors 3 and 5)

We address factors 3 and 5 together. Appellant argues that Mitchell and Hanna—both experienced prosecutors—could have taken more steps to ensure that the Brady files were delivered. While undoubtedly true, the question here is whether they provided a reasonable, good-faith explanation for the misconduct and whether that explanation is plausible. Mitchell's and Hanna's testimonies corroborated one another in that they both testified that Wen was in charge of delivering Brady files to appellant and neither of them supervised his work to verify that all Brady information was delivered. Thus, they believed that Wen delivered the Brady file on Pustilnik to appellant. Wen testified that while he successfully delivered over 10 different Brady files to appellant concerning law enforcement officers, it simply did not occur to him to check if Pustilnik had a Brady file because it is uncommon for a chief medical examiner to have a Brady file and Wen did not think that the State would hire a medical examiner that had a Brady file.

Appellant argues there was no good-faith explanation for the misconduct. According to appellant, their failure to inform Wen of Pustilnik's Brady file—despite their knowledge of it—indicates it was an intentional choice. However, it was for the trial court to weigh the credibility of the witnesses’ testimony. Here, the State provided a good-faith explanation for the misconduct—i.e., it was simply a mistake as opposed to intentional conduct—and the trial court could have reasonably believed that the State's good-faith explanation for the misconduct was legally and factually plausible.

These two factors weigh in favor of the State.

4. Was the conduct clearly erroneous? (factor 4)

When it comes to its failure to deliver Pustilnik's Brady file to appellant, the State seemingly wants to have it both ways. On one hand, throughout the proceedings below, the State admitted that the Brady file should have been delivered and that its failure to do so was a “mistake.” The State made the same concession during its oral argument on appeal, acknowledging that Pustilnik's Brady file unquestionably should have been disclosed to appellant before trial.

On the other hand, at the hearing on appellant's writ of habeas corpus, the State claimed it does not have a duty to disclose exculpatory information if the defendant was actually aware of the exculpatory evidence or could have accessed it from other sources. See Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011). Because appellant was aware of some of the information contained within the Brady file and because appellant arguably could have discovered additional information on Pustilnik via the internet, the State contends that the failure to deliver his Brady file did not constitute a Brady violation and that, accordingly, such misconduct was not clearly erroneous. The State makes the same argument in its appellate briefing. However, this argument is undermined by the fact that in other cases involving Pustilnik, the State delivered his Brady file to the defendant. Additionally, the very fact that the State has a Brady file on Pustilnik suggests that the State is aware that such information should be disclosed.

To determine whether the State's misconduct here arises to the level of clearly erroneous, we find it useful to review the importance of Brady itself, in addition to the Michael Morton Act. See Act of May 16, 2013, 83d Leg., R.S., ch. 49 (S.B. 1611) (codified at Tex. Crim. Proc. Code § 39.14).

a. Brady and the Michael Morton Act

The constitutional foundation for the State's disclosure obligations comes from Brady v. Maryland, where the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Texas courts have consistently applied Brady to require disclosure of both exculpatory evidence and impeachment evidence. Ex parte Chaney, 563 S.W.3d 239, 266 (2018). Thus, under Brady, the materiality—that is, whether “there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different”—of the evidence in question is the linchpin of the analysis. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).

Meanwhile, under state law prior to 2013, “there was no general right of discovery in Texas” under article 39.14. Watkins v. State, 619 S.W.3d 265, 274 (Tex. Crim. App. 2021). The decision of what was discoverable by a criminal defendant was ultimately left to the discretion of the trial court. Id. However, the legal landscape drastically changed because of the conviction of Michael Morton, who was wrongfully imprisoned from 1987 until 2011—almost 25 full years—for a murder he did not commit because the prosecutor trying his case had withheld material, exculpatory evidence. See id. at 275. As a result, the Michael Morton Act was passed in 2013, vastly broadening the discovery available for criminal defendants. See Tex. S.B. 1611, 83rd Leg., R.S. (2013). According to the bill's sponsors, the Michael Morton Act was intended to make discovery more efficient, reduce discovery disputes, and save taxpayer money by reducing appeals, incarceration, and possible compensation for wrongful convictions. See Sen. Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (2013).

Prior to 2013, article 39.14 only contained two subsections; the Michael Morton Act added twelve subsections. See Tex. S.B. 1611, 83rd Leg., R.S. (2013). Significantly, article 39.14(h) places upon the State a free-standing duty to disclose all “exculpatory, impeaching, and mitigating” evidence to the defense that tends to negate guilt or reduce punishment. See Tex. Code Crim. Pro. Ann. art. 39.14(h).

In other words, as explained by the Texas Court of Criminal Appeals, the Michael Morton Act requires prosecutors to disclose even more evidence than what Brady requires:

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 vs. Maryland. This subsection blankets the exact type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not “material.”

Also, the statute requires disclosure of evidence that merely “tends” to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Watkins, 619 S.W.3d at 277. Thus, the Michael Morton Act “mak[es] disclosure the rule and non-disclosure the exception.” Id. Viewed in this light, the Michael Morton Act is meant to counteract any potential prosecutorial tendency to narrowly interpret Brady obligations by codifying even broader discovery duties.¹

b. The State's misconduct was clearly erroneous

This returns us to our present inquiry: was the State's misconduct in this case “clearly erroneous?” Yes. Brady itself requires the State to divulge any “material” evidence to the defendant, which includes impeachment evidence. Pustilnik's file contained documents constituting possible impeachment evidence. And despite the State's assertions to the contrary, Pustilnik was arguably the State's most important witness. It is true that the State had over a dozen other lay witnesses, including family members, friends and neighbors, but Pustilnik was the sole expert the State had on Zavala's cause of death. Of course, a criminal offense can be proven with solely circumstantial evidence, but Pustilnik's testimony served as the foundation of the State's case.

Furthermore, as discussed above, the duty to disclose under the Michael Morton Act goes beyond the duty imposed under Brady. Thus, assuming for the sake of argument that the State had no duty to disclose the Pustilnik file under Brady because appellant was already aware of—or could have independently discovered—the information on Pustilnik, article 39.14(h) still mandates 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.” Tex. Code Crim. Pro. Ann. art. 39.14(h). The Pustilnik file surely falls into this broad category; it was within the State's possession and it contained documents that tend to negate guilt.

The fact that Wen, acting as third chair, was the one assigned the role of delivering Brady information to appellant does not make the misconduct any less erroneous. It is incumbent upon all attorneys representing the State in a criminal case—regardless of which chair they find themselves in—to ensure a criminal defendant is given all Brady material, in addition to any additional material he or she may be entitled to under the Michael Morton Act.

Therefore, we find that this factor weighs in favor of appellant.

5. The prosecutors’ actions leading up to the mistrial were consistent with inadvertence, lack of judgment, or negligence more so than intentional or reckless misconduct (factor 6)

The trial court accepted the State's explanation that it was negligent in failing to timely deliver the Brady file. Because the trial court's finding was based on credibility and demeanor, which the habeas court adopted in its findings of fact, we must defer to the factual findings that the misconduct was made inadvertently. See White, 160 S.W.3d at 50. And as discussed above in more detail, the State's actions up to the mistrial were more consistent with inadvertence or negligence than intentional conduct to avoid an acquittal or goad appellant into moving for a mistrial.² Once the misconduct was discovered, the State quickly investigated and subsequently delivered all relevant Brady information. Furthermore, the State argued against the motion for mistrial. Thus, this factor weighs in favor of the State.

In summary, five of the six factors weigh in favor of the State and one factor weighs in favor of appellant. While the State's failure to deliver the Pustilnik file was clearly erroneous, we must still give almost total deference to the trial court's factual findings. The trial court appropriately gave appellant the mistrial he requested. And then, after having the benefit of seeing the witnesses in person and weighing the credibility of their testimony, the trial court determined the State's misconduct was simply negligent rather than intentional. Reviewing the record before us, we cannot conclude that the trial court's ruling lies outside the zone of reasonable disagreement. See Wheeler, 203 S.W.3d at 330.

Accordingly, we overrule appellant's sole issue.

III. Conclusion

We affirm the ruling of the trial court as challenged on appeal.

FOOTNOTES

1.   It is worth noting that the prosecutor's higher duty to disclose evidence under the Michael Morton Act mirrors the prosecutor's ethical obligation under the Texas Disciplinary Rules of Professional Conduct, which itself mirrors the ABA Model Rules of Professional Conduct Rule 3.8(d); both of those rules state that “[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[.]” Compare Tex. R. Prof. Cond. Rule 3.09(d) with Model Rules of Prof'l Conduct r. 3.8(d) (Am. Bar Ass'n 1983). And similar to the Michael Morton Act, these ethical standards seek to impose a greater duty to disclose on prosecutors beyond the duties identified in Brady:A threshold question is whether the disclosure obligation under Rule 3.8(d) is more extensive than the constitutional obligation of disclosure. A prosecutor's constitutional obligation extends only to favorable information that is “material,” i.e., evidence and information likely to lead to an acquittal ․ Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial's outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.ABA's Standing Committee on Ethics and Professional Responsibility's Formal Ethics Opinion 09-454 at 4.

2.   Appellant only alleges that the State's conduct was intentional; he makes no argument that the State's misconduct was simply reckless.

Tonya McLaughlin, Justice