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TheThe TexasTexas The official journal of the Texas District and County Attorneys Association ProsecutorProsecutor May–June 2021 • Volume 51, Number 3 “It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.” Art. 2.01, Texas Code of Criminal Procedure The meaning of ‘material’ in Watkins v. State If you are a prosecutor, certainly you have heard of the Michael Morton Act. The Act has caused a significant change in the practice of all prosecu- tors and has impacted the workload of prosecutor office staff. But did you know the Michael Morton Act did not create By Alan Curry a new statute? The Michael Morton Act actually amended part of Texas’s discovery statute, which had been on the Assistant Criminal District Attorney in Galveston County books for decades, and it added several new subsections to it.1 The Michael Morton Act specifically amended Art. 39.14(a) of the Texas Code of Criminal Procedure, which now The Michael Morton Act added several new types of evi- requires that the State produce, after a timely request from dence that the State is required to disclose, but—as you can the defendant, various pieces of “evidence material to any see—there has been no change to the language as to the na- matter involved in the action.”2 Prior to the enactment of the ture of the evidence that the State is required to produce. Michael Morton Act, Art. 39.14(a) had long required the State The State is, and always has been, required to produce “evi- to produce, “upon motion of the defendant showing good dence material to any matter involved in the action.” cause,” various pieces of “evidence material to any matter in- So if the Michael Morton Act is such a big deal—and it is— volved in the action.” that must be based upon some other addition to Art. 39.14 Thus, the Michael Morton Act removed the “good cause” caused by the Michael Morton Act, right? Not so fast. requirement from the previous versions of Art. 39.14(a), and In Watkins v. State,3 the Texas Court of Criminal Appeals it based the State’s duty to disclose upon a request made by was squarely confronted with the meaning of this quoted the defendant, instead of a motion made to the trial judge. Continued on page 13 TDCAF News TEXAS The Escamilla– D ISTRICT AND COUNTY Wortham Challenge A TTORNEYS FOUNDATION The Foundation Board of 505 W. 12th St., Trustees is honored and proud Ste. 100 Austin, TX 78701 to announce a first-ever event: www.tdcaf.org the Escamilla–Wortham BOARD OF Challenge. TRUSTEES Bobby Bland Kathleen A. Braddock David Escamilla, former District Attorney in Thomas L. Bridges Travis County and 2021 Chair of the Foundation Kenda Culpepper Board, announced after he left office that he was Yolanda de Leon offering up to $10,000 of his leftover campaign By Rob Kepple David A. Escamilla funds as a dollar-for-dollar challenge grant to the TDCAF & TDCAA Executive Director in Austin Knox Fitzpatrick Foundation. Tony Fidelie Bob Wortham, the current CDA in Beaumont, H.E.Bert Graham thought that was such a great idea that he added Please note that because David and Russell Hardin, Jr. another $5,000 to the challenge! Bob’s contributions are personal Helen Jackson So, TDCAA supporters, it is time to rally to- gifts, they can be matched only with Tom Krampitz gether by contributing to the Foundation so personal gifts that will support the Barry L. Macha David and Bob can match your donations—up to Foundation’s unrestricted funds. If Ken Magidson $15,000! Every dollar you donate helps! I’ve al- you have any questions about con- Mindy Montford ready started us with $100. Who will be next? tributing, please call me at 512/474- Johnny Keane Sutton Current Foundation supporters, watch for a 2436. Greg Willis card in the mail (yes, an actual paper card!) invit- We will track our progress with Mark Yarbrough ing you to give toward the matching gift. We’ll also a trusty “thermometer” graphic in send out an electronic invitation later as a gentle each addition of this journal (at ADVISORY reminder to contribute. If you want to give now, right), and the challenge ends De- COMMITTEE you can do so at www.tdcaf.org. cember 31. So let’s heat this up! i James L. Chapman Troy Cotton Ashton Cumberbatch, Jr. Norma Davenport Recent gifts to the Foundation* Dean Robert S. Fertitta Gerald R. Flatten Art Bauereiss Cheryl Lieck in memory of Mike Hinton Jack C. Frels Donna Bennett in memory of Oliver Kitzman Crawford Long in memory of Cathy Cochran Michael J. Guarino Joe Edd Boaz Doug Lowe Tom Hanna David Finney Lyn McClellan in honor of Beth Exley Bill Hill Bob Gage Sunni Mitchell W.C. “Bud” Kirkendall Casey Garrett in memory of Mike Hinton Kim Ogg James E. “Pete” Laney Michaela Kee Tiana Sanford Michael J. McCormick Rob Kepple Stephen Smith John T. Montford Bud Kirkendall in memory of Cathy Cochran Beth Toben Kimbra Kathryn Ogg Tom Krampitz in memory of Mike Hinton Bob Wortham Charles A. Rosenthal, Jr. and Oliver Kitzman Joe Shannon, Jr. Carol S. Vance * gifts received between February 6 and April 2, 2021 2 The Texas Prosecutor • May–June 2021 issue • www.tdcaa.com TEXAS DISTRICT AND COUNTY TABLE OF CONTENTS A TTORNEYS ASSOCIATION 505 W. 12th St., Ste. 100 COVER STORY: The meaning of ‘material’ in Watkins v. State Austin, TX 78701 • www.tdcaa.com By Alan Curry, Assistant Criminal District Attorney in Galveston County 2 TDCAF News OARD OF IRECTORS B D By Rob Kepple, TDCAF & TDCAA Executive Director in Austin Executive Committee 2 Recent gifts to the Foundation President John Dodson, Uvalde Chairperson Kenda Culpepper, Rockwall President-Elect Jack Roady, Galveston 4 Executive Director’s Report Secretary-Treasurer Bill Helwig, Plains By Rob Kepple, TDCAA Executive Director in Austin Regional Directors 6 Training Wheels Region 1: Randall Coleman Sims, Amarillo By Brian Klas, TDCAA Training Director in Austin Region 2: Philip Mack Furlow, Lamesa 8 DWI Corner Region 3: Ricky Thompson, Sweetwater By W. Clay Abbott, TDCAA DWI Resource Prosecutor in Austin Region 4: John Hubert, Kingsville 9 Victim Services Column Region 5: Bob Wortham, Beaumont By Jalayne Robinson, LMSW, TDCAA Director of Victim Services Region 6: Greg Willis, McKinney Region 7: Kriste Burnett, Palo Pinto 17 Zooming in to TDCJ Region 8: Natalie Koehler Denbow, Meridian By Jon English, Prosecutor, Special Prosecution Unit Board Representatives 20 Understanding the insanity defense District Attorney Julie Renken By Zack Wavrusa, Assistant County and District Attorney in Rusk County Criminal District Attorney Erleigh Wiley 27 The unit-of-prosecution test strikes again in Ortiz v. State County Attorney Leslie Standerfer By Ali Nasser, Assistant Criminal District Attorney in Dallas County Assistant Prosecutor Tiana Sanford 31 Making the most of the time jury trials have left behind Training Committee Chair Tiana Sanford By Amy M. Eades, Assistant District Attorney in Brazos County Civil Committee Chair John Dodson TAC Representative Laurie English 35 Crossover Court helps juvenile offenders with open CPS Investigator Board Chair Gale Echols cases Key Personnel & Victim By Joshua Luke Sandoval, Assistant Criminal District Attorney in Bexar Services Board Chair Amber Dunn County STAFF Robert Kepple, Executive Director • W. Clay Abbott, DWI Resource Prosecutor • Diane Beckham, Senior Staff Counsel • Kaylene Braden, Membership Director & Assistant Database Manager • William Calem, Director of Operations & Chief Financial Officer • Shannon Edmonds, Director of Governmental Relations • Sarah Halverson, Communications Director • Stephanie Huser, Research Attorney • Jordan Kazmann, Sales Manager • Brian Klas, Training Director • Andie Peters, Assistant Meeting Planner • Jalayne Robinson, Victim Services Director • Dayatra Rogers, Database Manager & Registrar • LaToya Scott, Meeting Planner • Andrew Smith, Financial Officer • Amber Styers, Reimbursement Clerk ABOUT THE TEXAS PROSECUTOR Published bimonthly by TDCAA through legislative appropri- ation to the Texas Court of Criminal Appeals. Subscriptions are free to Texas prosecutors, staff, and TDCAA members. Ar- ticles not otherwise copyrighted may be reprinted with attri- bution as follows: “Reprinted from The Texas Prosecutor journal with permission of the Texas District and County At- torneys Association.” Views expressed are solely those of the authors. We retain the right to edit material. Executive Director’s Report Women in prosecution In March, I received a wonder- ful letter from a former DA and good friend of TDCAA, Steve Smith, a judge in Sutton County. Steve had been reading in the Texas Bar Journal about Women’s History Month, but the article did not mention the name of the first woman dis- trict attorney in Texas. He wondered in his letter By Rob Kepple if it was the former 51st Judicial District Attorney TDCAF & TDCAA Executive Director in Austin Charlotte Harris, who took office in 1992. My cu- riosity piqued, I decided to find out. My first stop in the way-back machine was the archives of The Texas Prosecutor journal, where I found a great article written by Lori Kaspar, then the County Attorney in Hood County, about Texas’s first female county attorney, Nellie Gray It took a little more digging, and for a moment Robertson. Nellie was one of the first women to I thought I had hit the jackpot when I discovered graduate with a law degree from the University an article about the Honorable Bonnie Leggat of Texas. In 1918, just six years after entering law Hagen, who had been appointed as the first dis- school, Nellie was elected as the County Attorney trict attorney in Harrison County in 1985. But in Hood County.
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