Moten v. State

In this case, a prosecutor did not disclose recordings of the defendant’s jail calls until just before trial. The intermediate appellate court held that the trial court erred in permitting use of the recordings at trial, because the jailer was part of the “state.” But the court concluded this error was harmless and affirmed the conviction. Even though it won in the intermediate appellate court, the State Prosecuting Attorney (SPA) petitioned the Court of Criminal Appeals, explicitly asking it to overrule Heath and re-interpret “state” to mean only the prosecutor’s office—or at most, the prosecutor’s office plus a subset of law enforcement. 

The SSCI, along with the ACLU of Texas, filed an amicus brief arguing against revisiting Heath. First, we argue that the SPA has directed their arguments to the wrong branch of government and that the Legislature is well-positioned to step in and clarify or otherwise change the statute. Second, we argue that the text and structure of the statute, as well as its history and purpose, undermine the SPA’s proposed re-interpretations. We explain that adopting either of the SPA’s proposals would undermine defendants’ disclosure rights, including those protected by Brady v. Maryland, which extends to anyone “acting on the government’s behalf in the case.” Finally, we argue that if the Court does reinterpret the statute, it should impose a functional, broad definition to account for the role that a government agency plays in the case and the agency’s relationship with the prosecutor.