IN THE
TENTH COURT OF APPEALS
No. 10-16-00372-CR
JOEL CARRERA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C36543-CR
OPINION
Joel Carrera appeals from a conviction for the offense of assault on a public
servant, which occurred while Carrera was incarcerated in the Navarro County Jail. TEX.
PENAL CODE ANN. §22.01(b)(1) (West 2011). Carrera complains that the trial court abused
its discretion in the admission of evidence that had not been disclosed in discovery prior
to trial in violation of Article 39.14 of the Texas Code of Criminal Procedure. Because we
find no reversible error, we affirm the judgment of the trial court.
ARTICLE 39.14
In his sole issue, Carrera complains that the trial court erred by admitting four
exhibits that had not been provided in pretrial discovery pursuant to Article 39.14(a) of
the Code of Criminal Procedure. The exhibits at issue are three photographs taken
shortly before the trial depicting the inside of portions of the Navarro County Jail where
the offense occurred and a page from the Navarro County Policy Manual which
described the policies for the use of force in the jail. Carrera was accused of hitting a jail
officer who was attempting to move him to another location within the jail. Carrera was
being moved after he had refused to follow directions given to him to stop
communicating with the woman who was arrested with him who had been placed in an
adjacent cell. The three photographs were admitted to further explain the jail layout
shown in a drawing which was previously admitted. The page of the Navarro County
Policy Manual was admitted to show the procedures that were required in order to use
force against a prisoner. When each of the exhibits were offered by the State, Carrera
objected because the exhibits had not been produced to him prior to trial.
For many years, criminal defendants have been entitled to limited discovery under
Article 39.14 of the Texas Code of Criminal Procedure in addition to, and independent of,
the constitutional right of access to exculpatory evidence explained in Brady v. Maryland.
Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds by
Cook v. State,
884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (citing Brady v. Maryland, 373 U.S.
Carrera v. State Page 2
83, 87,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963)). Until 2014, Texas law required the defendant
to file a motion and on the hearing thereof to show good cause to the trial court for the
discovery of evidence from the State. However, the passage of the Michael Morton Act
amended Article 39.14(a) to require that the State, upon a request of the defendant,
produce "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 action and 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) (West
Supp. 2018) (emphasis added).
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. We do
not write on a clean slate. The phrase at issue, "that constitute or contain evidence
material to any matter," was present in Article 39.14 before it was amended by the
Michael Morton Act. See Act 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
Carrera v. State Page 3
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 they
were accomplishing.1
Therefore, 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. See Branum v. State, 535 S.W.3d 217, 224-25 (Tex. App.—Fort Worth 2017, no
pet.). Evidence must be "indispensable to the State's case" or must provide a reasonable
probability that its production would result in a different outcome to be considered
material and subject to mandatory disclosure under Article 39.14(a). Branum,
535 S.W.3d
at 225; see Ehrke v. State,
459 S.W.3d 606, 611 (Tex. Crim. App. 2015) (Evidence is material
if it affects the essential proof that the defendant committed the offense charged.);
Quinones v. State,
592 S.W.2d 933, 941 (Tex. Crim. App. 1980).
Carrera's argument to this Court, which is devoid of any citation to authority other
than Article 39.14, is entirely premised on the concept that he was entitled to have the
1This 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, No. 07-16-00167-CR,
2016 Tex. App. LEXIS 10690 (Tex.
App.—Amarillo Sept. 29, 2016, pet. ref'd) (not designated for publication).
Carrera v. State Page 4
document and photographs produced but he does not make any argument that the
evidence was material. Further, he made no showing to the trial court that the exhibits
were material at the time of their admission. Because Carrera did not show that the
exhibits were material, he has not established that he was entitled to the production of
the exhibits in question pursuant to Article 39.14(a).2 We do not find that the trial court
abused its discretion by admitting the exhibits into evidence. We overrule Carrera's sole
issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 25, 2018
Publish
[CR25]
2Because we have found that Carrera did not establish the materiality of the exhibits, we do not address
whether his failure to request a continuance failed to preserve this complaint. TEX. R. APP. P. 47.1.
Carrera v. State Page 5
