Sometimes probation records contain information that is favorable to the defendant on punishment issues. Unlike law enforcement agency reports, however, the probation department does not provide us with their records. If a motion to revoke/adjudicate is filed what measures, if any, are you taking to make sure such information gets to defense counsel? Or, are you just treating it as outside the scope of 39.14? Thanks for your thoughts.

Our office is currently going through that discussion as well. We would love to know what other jurisdictions do as part of their routine discovery process on motions to revoke/adjudicate.

There is an argument that art. 39.14 does mandate disclosure in this situation. Subsection (h) refers to "any mitigating document, item, or information in the possession, custody, or control of the state that would tend to reduce the punishment for the offense charged" and subsection (k) brings into play such things as "the State discovers after trial." But, curiously, that subsection provides the disclosure may be made to the court. Those provisions do not contain the materiality/admissibility restrictions normally associated with Brady material. Prior caselaw supported the claim that the prosecutor is not required to independently search for or obtain possession of discoverable information. Munk, 448 S.W.3d at 692-93. Maybe that has changed. Certainly, the CSCD is quite arguably "the state or any person under contract with the state" spoken of in subsection (a). See Baughman, No. 06-14-00107-CR (Texarkana Nov. 18, 2014).

I am guessing this issue only arises where deferred adjudication is involved, as there is nothing that truly "tends to reduce" a punishment that has already been set, as in regular probation.

Martin,

Suppose a def. successfully completed a probation, but instead of being truly rehabilitated, he commits new crimes and is charged with kidnapping and sexual assault. Lurking in the 300 pages of probation officer chrons from his old probation is the naïve probation officer's observation, "probationer is very compliant, respectful, and eager to become a productive citizen. He aspires to one day be the president of his local Rotary Club. He is a very nice guy."

Wouldn't that be potentially mitigating? Do you think this is covered by the Michael Morton Act?

About the most we know about required disclosure is whatever you can derive from the language of the statute. If the second prosecutor learned of the probation notes, then he would have to make a judgment call about whether that particular info would tend to reduce the punishment for the offense charged (in the new indictment). I am going to say that because it is stale and has been proven false or overly optimistic that it no longer would have any tendency to reduce the punishment. Past good intentions do not seem to excuse or explain away your later actions that speak so much louder than the earlier words/facade. The probation notes were likely the result of a con job and were partly based on self-serving statements by the defendant. But, again, the admissibility of the information seems not to be controlling. Another part of Brady caselaw not mentioned in the statute is whether the info is something already known to the defendant.

I am guessing that even if disclosure is required by 39.14, the breach of the statute would never result in the award of a new trial for the kidnapper/rapist. In any event, it would be only a partial new trial.

These scenarios just serve to point out how delicate/confused the issue of discovery has become in criminal cases.