Defendant’s in Southeast Texas just had a new blow to their criminal discovery rights today when the 1st Court of Appeals released their newest opinion analyzing Brady disclosure. In Morris v. State, 01-16-00330-CR, __ S.W.3d __ (Tex. App.– Houston [1st dist.] 2017) Mr. Morris was convicted of family violence assault and was sentenced to 50 years in prison due to enhancements for previous allegations of domestic violence. On appeal, the defense raised the issue that Mr. Morris did not have access to the memos used to prove up the DV cases in impeachment of one of the state’s witnesses and that the state could not call a witness solely for impeachment purposes. The appellate court sided with the government and affirmed the conviction.
In its opinion, the court focused on the government’s argument that it did not have to produce the documents used during the impeachment because they were not “material” to the defense. The court reasoned that since Mr. Morris had received similar documents in a document dump from the Sheriff’s department eliminated the problems from the lack of disclosure. In its second point, it completely ignored the error of the impeachment problems since the trial attorney did not object properly in the context of the impeached statements. As expected, the court affirmed the trial court on both points of error.
So what actually happened here?
In my opinion this boils down to the court misapplying the law in one error and then the defense attorney just missing an objection on the other error. On the Brady error, the court applied the previous standard from its cases in criminal discovery. The problem with that is that the law changed materially with the introduction of the Michael Morton act in 2015. The changes to 39.14 changed the standard from the old Brady analysis as applied by the court here in that materiality no longer matters if the document has been suppressed. By definition, the change of statute would require the courts to reexamine this in light of the new laws. Here, the defense may have thought that the issue was waived, either due to not filing a request for discovery or some other matter during pretrial. Either way, the court should have made its ruling in light of 39.14 and cleared up this fast changing area of the law.
Impeachment under Rule 406
The second error is something that could happen to anyone. Trial objections are always a game depending on what your goals in examining a witness are and how to blunt the other side’s use of the testimony. Here, there is not much you could object to get around the court’s ruling. The court found that to succeed on this objection you have to make the objection specifically under Rule 406. The problem with that is how can you determine whether the witness was called solely to introduce impeachment evidence. Given this limit, the only way to do this would be to object as the state tries to introduce the impeachment evidence. Then you would have to move to strike any previous testimony elicited from the witness not connected to the impeachment. Regardless, this adds even more minutiae when trying a criminal case; and, when your rights are already under threat, limits yet another issue on appeal.