STATE v. HEATH (2024)

Rehearing denied.

DISSENTING OPINION

Attached to a letter from the State Prosecuting Attorney in support of its motion for rehearing is an article from Voice for the Defense. The article addresses the court of appeals's opinion in this case. That court held, as this Court later did, that under the Michael Morton Act, a prosecutor's negligence or inadvertence alone is enough to warrant the extreme remedy of exclusion of evidence.¹ The article is titled, “You Have the Right to Remain Silent: When Not to Ask for Discovery.” It says,

My takeaway is this: if you've filed a timely request for evidence per 39.l4 ․ and you realize that the prosecutor has not given you something that he will need to prove his case, keep it to yourself. You have the right to remain silent.2

The SPA argues that the Court's opinion in Heath encourages gamesmanship. The SPA is right.

And there is more. Twenty-six elected district and county attorneys representing thirty-nine counties from around the state have submitted amicus briefs that not only support the SPA's motion, but provide other reasons to grant rehearing. Here are some examples.

The Harris County District Attorney makes two points: one about the effect of Heath and the other about the legislative history of the Michael Morton Act.³ She says, “The current interpretation in Heath of the Michael Morton Act allows defense attorneys and judges to keep the truth from the jury. The Legislature wrote the Act as a shield to protect defendants; not as a sword to strike down righteous prosecutions by denying juries admissible evidence.”⁴ The Michael Morton Act, she says, was meant to expand access to the State's evidence, not to exclude it.⁵

Importantly, she explains that the Legislature considered the remedy this Court authorized in Heath–exclusion of evidence–and rejected it:

[T]he Texas Legislature chose not to give trial courts the power to exclude evidence under the Act. Rather, the Legislature eliminated this ability between the introduced and enrolled versions of the law. But even when it considered granting a trial court the power to exclude evidence, it limited the trial court to the procedural safeguards due process mandated for fairness and justice including a requirement for exhaustion of other remedies before permitting exclusion.6

An amicus brief submitted by eleven district attorneys argues that this Court erred to rely on civil discovery rules in Heath.⁷ First, unlike the Michael Morton Act, the civil rules explicitly provide for the sanction of exclusion of evidence.⁸ And second, before a judge in a civil case can impose that sanction, he must take into account whether a late disclosure would unfairly surprise or prejudice the opposing party.⁹ Heath makes no such demand, holding instead that a trial judge may exclude evidence regardless of bad faith, surprise, or prejudice to a defendant.

As the amount of evidence in criminal cases expands to terabyte level, with such things as cell-phone extraction and location information, body-cam video, doorbell video, CCTV, and computer hard drive extraction, it is inevitable that items with evidentiary value will sometimes be overlooked.¹⁰ Under this Court's opinion, an inadvertent mistake by an overworked prosecutor could leave crime victims without justice when the remedy of a continuance would protect both the defendant and the victim.¹¹

The Court should reconsider its holding in this case. Because it does not, I respectfully dissent.

FOOTNOTES

1.   State v. Heath, 642 S.W.3d 591 (Tex. App.—Waco 2022).

2.   Mitch Adams, Ethics and the Law: You Have the Right to Remain Silent: When Not to Ask for Discovery, Voice for the Defense, at 17 (June 2024) (citation omitted).

3.   Letter Brief of Harris County District Attorney as Amicus Curiae Supporting the State's Motion for Rehearing, at 2-3, State v. Heath, PD-0156-22, 2024 WL 4281049 (Tex. Crim. App. 2024).

4.   Id. at 3.

5.   Id.

6.   Id. at 2 (footnotes omitted).

7.   Brief of Fort Bend County District Attorney et al. as Amici Curiae Supporting the State's Motion for Rehearing, at 2-5, State v. Heath, PD-0156-22, 2024 WL 4281049 (Tex. Crim. App. 2024). In addition to the Fort Bend County District Attorney, the brief was sponsored by the Kaufman County Criminal District Attorney, the Palo Pinto County District Attorney, the Bexar County Criminal District Attorney, the Rockwall County Criminal District Attorney, the Dawson County District Attorney, the Wilbarger County District Attorney, the Galveston County Criminal District Attorney, the 81st Judicial District Attorney (serving Atascosa, Frio, Karnes, LaSalle, and Wilson counties), the Smith County Criminal District Attorney, and the Comal County Criminal District Attorney.

8.   Id. at 4-5.

9.   Id. at 5.

10.   See Letter Brief of Dallas County Criminal District Attorney as Amicus Curiae Supporting the State's Motion for Rehearing, at 1, State v. Heath, PD-0156-22, 2024 WL 4281049 (Tex. Crim. App. 2024).

11.   Letter Brief of Harris County District Attorney at 3.