
    Ralph Dewayne WATKINS, Appellant v. The STATE of Texas, Appellee
    No. 10-16-00377-CR
    Court of Appeals of Texas, Waco.
    Opinion delivered and filed July 25, 2018 Order on Denial of Rehearing August 22, 2018 Discretionary Review Granted December 5, 2018
    Stacey Soule, Texas State Prosecuting Attorney, John R. Messinger, Asst. State Prosecuting Attorney, Austin, TX, for Civil-Ad Litem Texas, The State of.
    R. Lowell Thompson, Navarro County District Attorney, Robert L. Koehl, Johnson County Asst. District Attorney, Corsicana, TX, for Appellee.
    Jason Edward Niehaus, Bodkin Niehaus & Dickson PLLC, Denton, TX, for Appellant.
    Stanley G. Schneider, Schneider & McKinney PC, Houston, TX, David E. Moore, Holmes & Moore PLLC, Longview, TX, Hilary R. Sheard, Attorney at Law, David A. Schulman, Attorney at Law, Austin, TX, for Civil-Amicus Curiae Texas Criminal Defense Lawyers Association.
    Before Chief Justice Gray, Justice Davis, and Justice Scoggins
   TOM GRAY, Chief Justice

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 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

1 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. SeeAct 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 to any matter involved in the actionand 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.

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. SeeAct 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 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. 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.

23 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. SeeBranum v. State, 535 S.W.3d 217, 224-25 (Tex. App.-Fort Worth 2017, no pet.) (citingU.S. v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ). Materiality for purposes of Article 39.14(a) means that "there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different." Meza v. State, No. 07-15-00418-CR, 2016 WL 5786949, 2016 Tex. App. LEXIS 10690 (Tex. App.-Amarillo Sept. 29, 2016, pet. ref'd) (not designated for publication) (citingEvans v. State, No. 07-07-0377-CR, 2009 WL 57036, at *3, 2009 Tex. App. LEXIS 150, at *7 (Tex. App.-Amarillo Jan. 9, 2009, pet. ref'd) ) (mem. op., not designated for publication); seeEx 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).

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 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

45 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.

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.

ORDER ON REHEARING

PER CURIAM

Appellant's motion for rehearing was filed on July 30, 2018. In the motion, appellant specifically argues that the Court should address the issue of whether a motion for continuance is necessary to preserve an issue for appellate review regarding the State's failure to produce arguably responsive documents in response to a proper discovery request. Specifically, appellant contends that the issue of the procedure necessary to preserve an issue for appellate review is important to the bench and bar for future article 39.14 cases and should be addressed in the Court's opinion in this proceeding. By failing to address the preservation issue, the appellant contends we have violated Texas Rule of Appellate Procedure 47.1 by failing to address an issue necessary for disposition of the appeal. See TEX. R. APP. P. 47.1. While we agree that the issue is important, we do not believe that it is necessary to a disposition of the appeal.

It is very common for an appellate court to skip a preservation argument to reach the merits of the issue so long as the disposition on the merits does not result in a reversal of the judgment. This is most often seen in opinions by the use of a phrase such as, "assuming without deciding that the issue was preserved for appellate review" or similar phrases. See e.g. Ransom v. State , 789 S.W.2d 572, 585 (Tex. Crim. App. 1989) ("Assuming without deciding that appellant's general objection was sufficient to preserve the issue for our review, we hold that the trial court's instruction to disregard was sufficient to cure any error."); Lamerand v. State , 540 S.W.3d 252, 257 (Tex. App.-Houston [1st Dist.] 2018, pet. ref'd) ("Assuming without deciding ... that [appellant] preserved the error, any error in admitting the report was harmless...."); Ex parte Roldan , 418 S.W.3d 143, 146 (Tex. App.-Houston [14th Dist.] 2013, no pet.) ("Assuming, without deciding, appellant preserved error on his contention, we conclude it lacks merit."); Sanders v. State , 346 S.W.3d 26, 35 (Tex. App.-Fort Worth 2011, pet. ref'd) ("Assuming without deciding [appellant] has preserved this issue for our review, ... the trial court did not abuse its discretion...."); Luna v. State , 301 S.W.3d 322, 326 (Tex. App.-Waco 2009, no pet.) ("Assuming without deciding that this issue is preserved for appellate review ..., we agree ... that the error was harmless.");

Revels v. State , 334 S.W.3d 46, 55 (Tex. App.-Dallas 2008, no pet.) ("Assuming without deciding that appellant's second issue was preserved for review," the issue was overruled.). This is most often done when the disposition on the merits is more efficient because the law on the merits is clear and the question of whether the issue is properly preserved is not, either factually or legally. However, if the review of the merits would result in a reversal, then a determination of whether the issue is preserved is necessary to the disposition of the appeal. Obella v. State , 532 S.W.3d 405, 407 (Tex. Crim. App. 2017) (appellate court may not reverse conviction without first addressing error preservation); Gipson v. State , 383 S.W.3d 152, 159 (Tex. Crim. App. 2012) ; (same) Meadoux v. State , 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010) (same). In this appeal, the disposition on the merits results in an affirmance of the trial court's judgment and therefore a ruling on the preservation analysis is not necessary to the disposition.

We do not disagree with appellant that there is a significant issue regarding the proper manner of preserving an objection to the State's failure to produce responsive documents in discovery pursuant to article 39.14. But we need not resolve that issue in this case. Until the issue is definitively resolved, the careful litigant will undoubtedly proceed until the litigant obtains an adverse ruling (object, move to strike, move for a mistrial) and also move for a continuance to have time to investigate and prepare a response to the untimely production of the responsive discovery.

Based on the foregoing, we overrule the Appellant's July 30, 2018 motion for rehearing. 
      
      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.
     
      
      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 well-reasoned and sound arguments.
     
      
      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, 2016 WL 5786949, 2016 Tex. App. LEXIS 10690 (Tex. App.-Amarillo Sept. 29, 2016, pet. ref'd) (not designated for publication).
     
      
      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.
     
      
      In this proceeding and in Carrera v. State , 10-16-00372-CR, an Amicus Curiae Brief on Rehearing has been received. The brief asks the Court to reconsider the Court's analysis and holding regarding the determination of the meaning of "material" as used in article 39.14 after the passage of the Michael Morton Act. See Tex. Code Crim. Proc. art. 39.14, as amended by Acts 2013, 83rd Leg., ch. 49, § 2, p. 106, eff. Jan. 1, 2014. While we generally agree that a sea change in criminal discovery was anticipated, and probably intended as a result of the passage of the amendments, the legislature's writings do not always accomplish what was intended and further amendment is thus required. The legislature did not change a term in the existing statute that had already been interpreted by the State's highest court in criminal matters. As we explained in our opinion, we do not write on a clean slate. If we did, we may very well utilize the interpretive tools and analysis suggested by the Amicus Curiae on rehearing as well as the Amicus Curiae brief on original submission filed by the State Prosecuting Attorney. But we are bound by the prior holding and interpretation of the definition of "material" by this State's highest court on criminal matters. Accordingly, we decline the invitation of the Amicus Curiae to revisit our analysis and holding of the meaning of "material" as used in article 39.14.
     