Defense filed a Motion for Discovery of State's Witness List more than 30 days before trial. I filed my initial Disclosure of State's Expert and Non-Expert Witnesses on time, however, I realized that I left off the 911 operator whom I need to authenticate my 911 call. I filed an Amended Disclosure of State's Expert and Non-Expert Witnesses 19 days before the trial date (not meeting the 20 day requirement). Am I screwed and should re-set the case? I read one case that said: "the State need not comply with requests contained in a discovery motion until the trial court orders it to do so." 2011 Tex. App. LEXIS 8356. To my knowledge, Defense filed his Motion for Discovery but the Judge never granted or denied the order.

It is very important to get the 911 call in because the witness on the call will be unavailable at trial

The 20-day rule in statute is only for expert witnesses, and your dispatcher isn't an expert, so you're good there. Also, you get the 911 call in as a business record if you file the affidavit 14-days in advance so you don't even have to call the operator.

Jon,
Good news for Cole, but would the answer be different if the witness filed on the 19th day were an expert? Assume no bad faith or proveable disadvantage. Any cases give hope for forgiveness?

This actually happened to me just a few weeks ago and I found nothing in case law to save me. I had to ask for a continuance and I just fessed up to the court that I had failed to disclose my experts in writing in time, and defense counsel had to hold me to it because they actually needed a continuance and didn't want to burn one.

You can always ask defense counsel if they want to waive the statute, and if they want to try the case as planned then no harm, no foul. But if they raise an objection the judge can either let you reset, or I suppose, could force you to go to trial without your experts.

Johnson v. State, 233 S.W.3d 109 ([14] 2007) offers Ct. discretion if it finds no bad faith or surprise. Have not yet reviewed the 30 subsequent citations to Johnson.

That was under the old statute, where a judge could order it. The language was changed last session. Now it's required by statute if the request for expert witnesses is made at least 30 days prior to trial. There's no room in the statute's language for discretion on the part of the judge I can conceive. But I'd be happy to be wrong.

You're right. Thanks for working on Sunday.

I'm here all week. Tip your waitresses!

Thank you so much for your help Jon!