Moten, Herbert Wayne

04/02/2026

PD-0932-25

State represented by SPA

  1. "Should State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), be overruled and ‘state’ in the discovery statute be interpreted to mean the prosecutor’s office?"
  2. "Should State v. Heath, 696 S.W.3d 677 (Tex. Crim. App. 2024), be overruled and ‘state’ be interpreted to mean ‘the prosecution’—i.e., those that participate in the investigation or prosecution of the offense?" 

Moten fought with a rival over a woman and was charged with stabbing him. Both parties had difficulty locating the woman for trial. When the State finally secured a meeting with her during voir dire, she revealed Moten had called her from jail soon after the stabbing. By opening statements the following Monday, the State had obtained the recordings from the sheriff and arranged for the defense to listen to the two 15-minute-long calls. Moten objected to their late disclosure, relying on State v. Heath’s holding that prosecutors must diligently seek out evidence (like these 10-month-old calls) in the “State’s” possession, which includes the sheriff as a law enforcement officer. The prosecutor explained that it hadn’t known the calls existed, adding that the defense hadn’t requested any calls and could have subpoenaed them himself. The trial court found the State turned the calls over as soon as it could and overruled the objection. They were admitted in evidence, and Moten was ultimately convicted.

On appeal, he reasserted the discovery claim. The court of appeals agreed the State violated Art. 39.14. Under Heath, because the jail calls were on a server belonging to a contractor of the sheriff, they were continually in the State’s possession and thus the State failed to diligently ascertain whether discoverable evidence existed. The court of appeals then found the error harmless and affirmed.

The State asks the Court to overrule Heath and construe “state” in Art. 39.14’s requirement to disclose evidence in the “possession, custody, or control of the state” to mean either (1) the prosecutor’s office or (2) the state actors participating in the investigation or prosecution of the case at issue. It contends Heath’s decision to construe the term to mean “the State of Texas in its broadest sense” is absurd, not based on the text of the statute, and is inconsistent with how “state” is used in the rest of Art. 39.14 and elsewhere in the Code of Criminal Procedure. It contends that “state” shouldn’t reach the sheriff in this case because the city police department was the investigating agency, and the sheriff had no role in investigating or prosecuting the case. It thus could not be part of “the State of Texas as a party to the lawsuit.” It notes that several Brady decisions do not extend the duty to disclose exculpatory evidence as far as the court of appeals did.