In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-24-00185-CR
JONATHAN DAVID BENAMI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1835799
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef Concurring Opinion by Justice Rambin MEMORANDUM OPINION
Jonathan David Benami appeals his conviction for murder, a first-degree felony, by a
Tarrant County jury.1 See TEX. PENAL CODE. ANN. § 19.02(c) (Supp.). At issue is the trial
court’s ruling that Benami failed to properly notify the State of Benami’s expert witness as
required by the Texas Code of Criminal Procedure. The trial court precluded Benami from
presenting testimony from that witness.
We conclude that Benami did not preserve his argument that the trial court misapplied
Article 39.14(b) of the Texas Code of Criminal Procedure2 and that the trial court did not abuse
its discretion in excluding testimony from Benami’s proffered expert under the same article. We
affirm the trial court’s judgment.
I. Background
Law enforcement arrested Benami for a murder that occurred on September 29, 2021. In
November 2022, the trial court found him to be incompetent to stand trial. Benami remained
incompetent for the rest of 2022 and much of 2023. In February 2024, the trial court found him
competent and proceeded with his trial in August 2024.
At a pretrial hearing the morning before voir dire, Benami acknowledged he had not
designated an expert witness whose testimony he wanted to proffer at trial. See TEX. CODE
CRIM. PROC. ANN. art. 39.14(b). Benami asked for a continuance so he could comply with
1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are not aware of any precedent from that court that is inconsistent with our opinion. See TEX. R. APP. P. 41.3. 2 See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (Supp.). 2 Article 39.14(b) and to do further investigation and preparation for the presentation of mitigation
evidence at trial. The State objected that Benami did not comply with Article 39.14(b) and noted
(1) that one of Benami’s attorneys represented him in another criminal case that had been
resolved just days before the murder in this case, (2) that it was aware of at least two interviews
with Benami by proffered witness, Dr. Emily Fallis, (3) that the case had been specially set, and
(4) that almost three years had passed since the murder. Benami provided no notice to the State
of his proposed expert witness, and the trial court excluded her from testifying.3
The jury convicted Benami of murder and recommended a sentence of seventy years’
incarceration. The trial court sentenced him accordingly, and this appeal followed.
II. Article 39.14(b) Argument Not Preserved
First, Benami argues the trial court misapplied the notice requirement of Article 39.14(b).
However, Benami did not make his argument to the trial court. “Preservation of error is a
systemic requirement that a first-level appellate court should ordinarily review on its own
motion.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quoting Jones v. State,
942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)). It is “incumbent upon the Court itself to take up
error preservation as a threshold issue.” Id. That said, “we will not be hyper-technical in our
examination of whether error was preserved.” Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim.
App. 2007). At the pre-trial hearing, Benami asked the trial court for a continuance because he
had not designated Fallis as an expert witness for trial. On appeal, Benami claims the trial court
3 The trial court said that Benami had failed to comply with “the Rules of Evidence,” but from the context it was clear the trial court was referring to Article 39.14(b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b). 3 did not correctly interpret and apply Article 39.14(b). See TEX. CODE CRIM. PROC. ANN. art.
39.14(b).
At issue is the first sentence of Article 39.14(b):
On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.
TEX. CODE CRIM. PROC. ANN. art. 39.14(b). Benami argues that “[o]n a party’s request made not
later than the 30th day before the date that jury selection in the trial is to begin” should be read to
mean “the first-time [sic] jury selection is scheduled to begin.” So, here, jury selection was first
set for April 26, 2024, but the trial court rescheduled the trial.4 The State requested an expert
witness notice on May 10, 2024, and the parties selected a jury on August 26, 2024. Thus,
argues Benami, the State’s request was not timely filed (i.e., not thirty days before jury selection
was first scheduled to begin) and Benami had no obligation to give notice of his expert witness at
all.
But Benami never made that argument to the trial court. Where an appellate argument
does not comport with a trial objection, the appellant has not preserved the matter for our review.
See TEX. R. APP. P. 33.1; Auld v. State, 652 S.W.3d 95, 109 (Tex. Crim. App. 2022). We
overrule Benami’s first point of error.
4 The State requested and received a continuance because it was awaiting DNA test results. 4 III. Trial Court Did Not Abuse its Discretion Excluding Benami’s Expert Witness
A. Standard of Review
In his second point of error, Benami argues that the trial court abused its discretion in
prohibiting Fallis from testifying at trial. “We review a trial court’s decision on whether to allow
an expert witness to testify on an abuse of discretion standard.” Johnson v. State, 233 S.W.3d
109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Chakravarthy v. State, 516 S.W.3d
116, 135–36 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (quoting Johnson, 233
S.W.3d at 114); see Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000). “If the trial
judge allows a witness to testify who does not appear on the [offering party’s] witness list, we
consider whether the [offering party]’s actions constitute ‘bad faith’ and whether the defendant
could have reasonably anticipated the witness’[s] testimony.” Martinez v. State, 867 S.W.2d 30,
39 (Tex. Crim. App. 1993).
When reviewing a claim such as this, a number of factors surrounding the trial court’s decision (and, hence, whether it was an abuse of discretion) must be considered. “Among the factors which will be considered by this Court in determining . . . abuse of discretion is a showing of bad faith on the part of the prosecutor in failing to disclose ahead of time the name of the witness.” “Another such factor is whether the defendant can reasonably anticipate that the witness would testify although his or her name was not included within the witness list.”
Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992) (citation omitted) (quoting
Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981)).
5 1. Benami’s History of Incompetency Before Trial5
Benami’s case was pending less than three years. The murder occurred on September 29,
2021, and trial began the last week of August 2024. Attorney Scott Palmer filed a notice of
representation on October 7, 2021. The first indication of mental illness appears in the record on
July 28, 2022, in the form of an invoice for a psychological evaluation of Benami submitted by
Emily Fallis, Ph.D., of “Balance Forensic & General Psychological Services, Inc.” On
August 17, 2022, the trial court signed an order for the examination of Benami for any signs of
mental illness or intellectual disability. See TEX. CODE CRIM. PROC. ANN. art. 16.22 (Supp.). On
November 9, 2022, the trial court issued a warrant for Benami with the notation “[h]old
[p]ending emergency competency exam.” The following day the court ordered a competency
examination to be performed by Dr. Jim Womack. Womack submitted an invoice dated
November 14, 2022, on Balance Forensic & General Psychological Services, Inc., letterhead.
The invoices submitted by Womack and Fallis were on the same letterhead, included the same
case/client identification number, and both identified the examinee as Benami.
On November 15, 2022, based on Womack’s examination, the trial court found Benami
incompetent to stand trial. The trial court committed Benami to participate in the “Jail-Based
Competency Restoration Program” and then, on January 24, 2023, the trial court committed
Benami to a mental hospital. The trial court ordered another competency examination on April
28, 2023, this time to be performed by Dr. William Barry Norman, who submitted an invoice
dated May 4, 2023. Like the invoices of Womack and Fallis, Norman’s invoice identified
5 Benami intended to offer Fallis’s testimony about his state of mental health and history of his mental illness as mitigation testimony at punishment. 6 Benami as the examinee and used the same case/client identification number. By July 31, 2023,
Benami apparently had been released from commitment, as he evidenced participation in a status
or plea conference with his signature on a court document. On September 29, 2023, the trial
court entered another order for examination for mental illness or intellectual disability, again
ordering Benami participate in an interview at My Health My Resources (MHMR) of Tarrant
County. On that same date, the trial court entered yet another order for a competency
examination. Norman submitted another invoice on October 29, 2023. On November 21, 2023,
the trial court again ordered that Benami be transferred to a mental hospital.
The trial court signed a final order for a competency examination on February 6, 2024, to
be conducted by Norman, and on February 20, 2024, the trial court found Benami competent to
stand trial. The case was set for trial in April 2024. As previously noted, on April 26, 2024, the
State asked for and received a continuance because it was awaiting DNA test results. The parties
tried the case from August 26, 2024, through September 4, 2024. In a hearing after the defense
rested, the State withdrew its expert, Dr. Antoinnette McGarrahan, and did not present her for
testimony.
B. Benami Did Not Comply with Article 39.14(b)
Benami did not comply with Article 39.14(b)’s requirement that, on the request by the
opposing party, a party designate the expert witnesses it plans to present at trial.6 On August 26,
2024, the morning of trial, Benami candidly acknowledged his failure to comply with Article
6 “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin . . . the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial . . . .” TEX. CODE CRIM. PROC. ANN. art. 39.14(b). 7 39.14(b).7 Benami asked for a continuance to properly designate Fallis as an expert witness.
Michael Levine, who appeared as co-counsel for Benami on Thursday, August 22, 2024, argued
for the continuance.8 Levine told the trial court that the defense team had spoken to Fallis the
day before, a Sunday, while Fallis was out of town. While one of the defense attorneys had met
with Benami’s father previously, the defense team had only met with Benami’s siblings at the
time of trial. According to Levine, the defense team “learned an incredible amount of
information that [went] to the heart of mitigation . . . in regards to [Benami’s] childhood, his
mental illness, beginning with early high school, work, [Child Protective Services (CPS)] records
from the time spent with his mother, who [was] deeply mentally ill, [and] ha[d] been
institutionalized before.” Levine told the trial court that the conversation with Fallis the previous
day was “the first time [they] discussed in detail what [Fallis] would testify to at trial,” and he
conceded that that was “inexcusable.”
Fallis was “essentially [Benami’s] entire mitigation . . . evidence,” but, according to
Levine, “Fallis [has not] spoken to anyone in [Benami’s] family and there’s not only no
explanation, but there’s no excuse.” Benami claimed, “[T]here’s just so much mitigation
7 Benami informed the trial court,
Your Honor, we’re going to try and prevail upon the Court -- if this was done properly, we need to try to prevail upon the Court at the very least be able to introduce this evidence at guilt/innocence. . . . But for sure, right now we don’t have the mitigation that we know is out there that we could have gotten and we should have gotten. . . . I can’t tell you why; I wasn’t on the case then. I can just tell you, Your Honor, that it’s basic things that should have been done that were neglected. 8 Levine’s letter of representation was filed at 5:03 p.m. on August 22, 2024. He joined Benami’s defense team led by Scott Palmer. In arguments, it was discussed that Palmer’s firm represented Benami in a Denton County assault prosecution, which was pending when the instant murder occurred. However, Palmer told the trial court his firm “never met Mr. Benami before the allegation that made the basis of this indictment.” 8 evidence out there that was neglected because people weren’t spoken to in time.” The State
listed “high school records, CPS records,” and chronological records from Benami’s bond
officer, as well as hospital and mental health records the State had acquired and provided to the
defense.
In opposing the motion for continuance, the State claimed that Benami had requested
funds in December 2021,9 giving Fallis ample time to interview Benami, and that Fallis had
conducted two interviews on or about May 22 and June 4, 2024. The State pointed out that the
case was three years old, the defense had had ample opportunity to investigate the case and have
Fallis examine Benami, and the trial had been specially set for that date. As for its discovery, the
State told the trial court it had “requested any and all mental health records for this defendant,”
including records from Tarrant County, Tarrant County MHMR, John Peter Smith department,
as well as work, school, and family records, which had been compiled by “bond officers that
have dealt with [Benami] over the last three years off and on” and included “thousands of pages
of records that predate [this] offense.” All of those documents had been furnished to the defense
in “the last few months [of trial], if not sooner.” The State also reminded the trial court that a
week prior to trial, at another pre-trial hearing (not contained in the appellate record) and before
Levine joined the defense team, the defense told the trial court “that they did not have any
concerns regarding [Benami’s] competency.”
9 The State advised, “The request for the Court to provide additional funds was requested back I believe it was December of 2021.” There is no request for funds in the clerk’s record until July 29, 2022, when an invoice for an examination by Fallis was submitted to the court. 9 1. The Offer of Proof
Benami presented an offer of proof from Fallis. She described Benami as “fit[ting] the
diagnosis of schizoaffective disorder.” Fallis continued by saying that that is “a serious mental
illness that includes both psychotic symptoms like hallucinations and delusions and disorganized
thinking . . . also . . . disorganized odd behavior.” Although there were some records to which
she had not been privy and she was unable to “interview[] . . . people related to the case,” Fallis
also opined that Benami “was mentally ill at the time of the murder and that his mental illness
significantly affected his behavior.” Benami’s attorney asked how long Fallis would need to
render an opinion “in regards to either insanity or . . . punishment mitigation” if she received
everything she needed that day, and Fallis answered, “Maybe another week.” That was on
August 29, 2024, the fourth day of trial. Fallis was asked to evaluate Benami for competency
and insanity, but she did not “conduct a full forensic examination” because she was not provided
sufficient records and had not been provided access to people “related to the case.”
According to Fallis, there was then “a long period where [she] didn’t even know what
was happening in the case[,] and [she] was contacted a couple years later and asked to look at his
competence to stand trial at that point.” She claimed not to have received any records or
documents to review, except from the defense, and Fallis stated that nobody provided family
information to her, such as any history of mental illness. Fallis developed her opinions despite
what appears to have been limited access to background information that she would usually be
provided before being asked for opinions or diagnoses.
10 Fallis said that she had met with Benami four times. As noted herein, there was an
invoice submitted from her suggesting an evaluation in July 2022. Fallis told the trial court that
she “was contacted in October of 2021” and that someone provided a court order to her in
November 2021. She “was asked to just generally . . . do an evaluation, looking at competence,
mental state at the time of offense, just, again, generally to evaluate Mr. Benami.” However,
after a couple more questions, Benami’s counsel reminded Fallis of the date of the murder and
asked, “[H]ow long after that do you think you saw him?” Fallis responded, “[T]he first time I
saw him was in December of 2021.” The parties seemed to agree that Fallis saw Benami in May
and June 2024, just before trial.
Fallis did find Benami incompetent to stand trial, at some point, based on “[h]is behavior
with [her] and also his behavior that was reported by the attorneys” who had “difficulty working
with [Benami].” Later, after another examination, she found Benami competent to stand trial.10
C. Analysis
First, we conclude the record does not show bad faith on Benami’s part in failing to
comply with Article 39.14(b)’s requirement. Benami’s failure to properly disclose his expert
witness seems born out of sheer negligence. “Extreme negligence or even recklessness on the
. . . part [of the offering party] in failing to comply with a discovery order will not, standing
alone, justify the sanction of excluding relevant evidence.” Francis v. State, 428 S.W.3d 850,
10 Benami’s counsel asked Fallis, “And did you perform another evaluation later on in which you found [Benami] competent?” Her answer was somewhat confusing: “Yes. I did see him after a report in which I said he was not competent and thought he was competent at that time later after that report, but I did not write another report.” 11 855 (Tex. Crim. App. 2014), abrogated by State v. Heath, 696 S.W.3d 677 (Tex. Crim. App.
2024). However, we find the State could not have anticipated Benami’s plan for Fallis to testify.
Nothing in the record suggests the State should have anticipated Fallis’s testimony as an
expert witness for Benami. Fallis had four meetings over a period of more than two years. Other
psychological professionals, Norman and Womack, also met with and evaluated Benami.
Benami, in his appellate brief, refers to the invoice submitted by Fallis in July 2022. As
we pointed out earlier, Fallis submitted that invoice on Balance Forensic & General
Psychological Services, Inc., letterhead. The invoice is “from” Fallis, and has specific
identifying information including Benami’s name and his case/client identification number. In
November 2022, another invoice from Balance Forensic & General Psychological Services, Inc.,
was filed with the court. That invoice was submitted by Womack and was also for an evaluation
of Benami, with the same case/client identification number. However, Benami conflates those
two examinations to suggest Fallis was responsible for both by stating, “Then, in November
2022, Dr. Fallis (or Appellant’s attorney) submitted another invoice to the court.” He makes that
statement and cites to the “Womack” invoice noted above. Both invoices bear the case/client
identification number 1703261, but Benami ignores the differing psychologists. Later, on May
4, 2023, Norman submitted a third invoice on his own letterhead.11 So, there are three invoices
in the record, submitted by three different psychologists.
The only other place Fallis is mentioned in the record before us is at one of about three
dozen “Sources of Information” reviewed by the State’s expert, McGarrahan, who examined
11 Although submitted from a different provider, that invoice also has the same case/client identification number: 1703261. 12 Benami in August 2024, at the State’s request. The State filed a Lagrone motion12 to have
Benami subject to a “psychiatric examination” by McGarrahan as the case drew close to trial.
Benami cites the motion as evidence the State knew he intended to call Fallis to testify. In its
motion, the State said, “The attorneys for the Defendant have indicated on May 10, 2024, that
they have experts that need access to the Defendant in preparation for trial.” There is no mention
of Fallis or the other two doctors that examined Benami in the State’s motion. McGarrahan’s
“Sources of Information” include the reports by Womack and Norman. And the only document
in the clerk’s record that was filed on or around May 10, 2024, was the State’s request for
designation of Benami’s experts. None of that information demonstrates that the State should
have anticipated Fallis’s testimony.
McGarrahan also testified at a hearing outside of the jury’s presence. When asked who
had seen Benami for competence, McGarrahan said some “people would have seen him
repeatedly through the competency restoration program,” a psychiatrist (whose name might have
been Dr. Benjamin), and a “Dr. Mimms, who saw him on bond.” There are no details in the
record about those providers, but McGarrahan testified she had reviewed all reports from all
doctors who had “seen” Benami since the offense.
12 In Lagrone v. State, 942 S.W.2d 602, 609–12 (Tex. Crim. App. 1997), the Texas Court of Criminal Appeals held that a defendant’s presentation of psychiatric testimony on future-dangerousness is a “limited” waiver of Fifth Amendment rights entitling the State to compel the defendant to an examination by the State’s psychiatric expert for rebuttal purposes “provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert.” Lagrone, 942 S.W.2d at 610, 611 (Tex. Crim. App. 1997) (quoting Soria v. State, 933 S.W.2d 46, 58, 59 (Tex. Crim. App. 1996)). Hence, the term “Lagrone motions.” “Lagrone motions are fairly common in capital cases where experts are involved.” Williams v. State, 707 S.W.3d 233, 239 (Tex. Crim. App. 2024); see Saldano v. State, 232 S.W.3d 77, 82–83 (Tex. Crim. App. 2007). 13 Also, Benami did not file a notice of intent to raise an insanity defense. See TEX. CODE
CRIM. PROC. ANN. art. 46C.051. With no insanity defense announced and Benami having
announced, a week before trial, satisfaction with the determination of his competency,13 we
cannot see how or why the State should have reasonably anticipated the trial testimony of Fallis
in particular.
The rest of Benami’s arguments that the State should have anticipated Fallis’s testimony
are conclusory: “All of the evidence confirms that the State was aware that Dr. Fallis might be a
witness in either guilt/innocence or punishment. Indeed, the State retained its own expert, who
. . . examined [Benami], and the State consulted the expert about how to approach the case.”
Benami seems to base those statements on Fallis’s four meetings with him over a period of two
or more years. However, there is nothing in the record suggesting that the State should have
anticipated Fallis’s testimony, especially when at least two other psychologists evaluated Benami
over the years and at least one psychiatrist.
Benami’s appellate argument continues, “[E]ither [Benami] or Dr. Fallis filed her records
with the [trial] court and the State’s own motion explained that counsel for [Benami] intended to
call Dr. Fallis.” That seems to refer to the State’s Lagrone motion, seeking examination as trial
approached. In its Lagrone motion, the State said, “The attorneys for the Defendant have
indicated on May 10, 2024, that they have experts that need access to the Defendant in
preparation for trial.” In no way did the State’s Lagrone motion mention Fallis, Norman, or
13 At the pretrial hearing, the State said, “[T]here was also said to the [c]ourt that they did not have any concerns regarding his competency, that they accepted the competency evaluation done more recently in August.” It is worth pointing out that, after three days of testimony and Fallis’s offer of proof, Benami moved for a mistrial, claiming to have “met the legal definition for insanity at the time of the offense.” But, again, Benami filed no pretrial motion to pursue an insanity defense. 14 Womack or suggest that any particular psychologist or care-provider was a defense expert or was
expected to testify at trial. Benami also complains that the State’s discovery listed “182 ‘experts’
of which seventy-three were for mental health” and thus “the equities of this case favor
[Benami].” Benami offers no authority for that position or why it establishes that the State
should have reasonably anticipated that Fallis, as opposed to any other mental health expert,
would testify.
D. Case Law
In Chakravarthy, the defendant failed to timely notify the State of one of its intended
expert witnesses. Chakravarthy, 516 S.W.3d at 134. Although the defendant “produce[d] a fax
cover sheet that showed transmission” of his expert witness disclosure, id. at 136, he “could not
produce the confirmation sheet,” id. at 134, and the State claimed surprise when he called the
witness to the stand. At a hearing on the matter, the trial court found Chakravarthy “had
presented no evidence . . . that notice was given.” Id. at 136. The court of appeals upheld the
trial court’s exclusion of Chakravarthy’s witness. Id.
Chakravarthy cited Johnson. In Johnson, the court of appeals found that “the State could
not reasonably have anticipated that a clinical psychologist would be called by appellant to
testify during the punishment phase of the trial, and therefore could not prepare to meaningfully
cross-examine or decide to produce its own expert witness in rebuttal.” Johnson, 233 S.W.3d at
115. The Johnson court, in reaching that result, adopted the reasoning of our sister transferor
court of appeals in Strawn v. State, No. 02-02-00170-CR, 2003 WL 21235537, at *2–4 (Tex.
15 App.—Fort Worth May 29, 2003, pet. ref’d) (per curiam) (not designated for publication).14 The
trial court in Strawn excluded the defendant’s proffered expert when the defendant did not notice
his identity upon the State’s request. Strawn, 2003 WL 21235537, at *2. Although the State was
aware that an expert had performed a psychological examination of Strawn, there was “no other
evidence . . . that [Strawn] intended to use” the proffered expert at trial.15 Id. at *3.
E. Application
The trial court acted in compliance with the requirements of Article 39.14(b). While
there is no indication that Benami acted in bad faith, based on the record before us, the State
could not have reasonably anticipated Fallis’s testimony. See Nobles, 843 S.W.2d at 514–15;
Chakravarthy, 516 S.W.3d at 136. Fallis was one of several mental health professionals who
evaluated Benami in the three years before trial, but on this record, that does not show that “the
opposing party could have reasonably anticipated that the undisclosed witness would testify.”
Chakravarthy, 516 S.W.3d at 136 (quoting Johnson, 233 S.W.3d at 115).
We overrule Benami’s second point of error.
IV. Conclusion
We overrule both points of error. We affirm the trial court’s judgment.
Charles van Cleef Justice
14 Strawn, of course, as an unpublished opinion “ha[s] no precedential value.” TEX. R. APP. P. 47.7. So, we accord Strawn no precedential value and yet “take guidance” from it “as an aid in developing reasoning that may be employed” in this situation. Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)). 15 Although not explicit, it appears that the proffered expert witness conducted the psychological evaluation. Strawn, 2003 WL 21235537, at *3. 16 CONCURRING OPINION
The parties did not brief this Court regarding recent, and in my view, controlling
authority from the Texas Court of Criminal Appeals. See Heath, 696 S.W.3d at 699.16 As a
result, the analysis turns, in large part, on the “bad faith” concept from thirty-year-old cases from
the early 1990s,17 which consequently, predate the 2013 Michael Morton Act by two decades.18
The analysis additionally turns on the negligence rule of Francis (that negligence by the offering
party will not result in exclusion) even though Francis has been abrogated by Heath.19 That is
the analysis resulting from how the parties have framed the issues.
Heath held that “the old concept of ‘bad faith’ no longer applie[s] to Article 39.14.”
Heath, 696 S.W.3d at 707.20 It did so based on the Michael Morton Act’s amendment of Article
16 The State did mention Heath in its brief, but on the question of statutory construction raised by Benami’s assertion on appeal that the State’s discovery request was untimely. 17 See majority opinion at Section III.A (quoting Nobles, 843 S.W.2d at 514–15; Martinez, 867 S.W.2d at 39); Section III.C (“First, we conclude the record does not show bad faith on Benami’s part in failing to comply with Article 39.14(b)’s requirement.”). 18 See Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106. “The wrongful conviction of Michael Morton provided a significant spark the Legislature needed to completely change criminal discovery in Texas.” Watkins v. State, 619 S.W.3d 265, 274–75 (Tex. Crim. App. 2021) (emphasis added). “A simple side-by-side comparison shows that the Michael Morton Act did not merely amend a portion of Article 39.14(a); it revamped Article 39.14 completely. It was, as the State agrees, an overhaul of discovery in Texas.” Id. at 277. 19 See majority opinion at Section III.C (citing Francis, 428 S.W.3d at 855, abrogated by Heath); Section III.C (“Benami’s failure to properly disclose his expert witness seems born out of sheer negligence.”). 20 Before Heath declared “bad faith” an “old concept” regarding Article 39.14, the Texas Court of Criminal Appeals had described the defendant’s discovery obligations under 39.14(b) as limited, but reciprocal to those of the prosecution under 39.14(a). Heath, 696 S.W.3d 707; see Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). Indeed, Pope spoke specifically to the defense’s obligation to disclose expert witnesses. Pope, 207 S.W.3d at 360 (“[A]rticle 39.14(b) of the Texas Code of Criminal Procedure was amended in 1999 to provide for limited reciprocal discovery of the opposing side’s potential expert witnesses.”); see also Strawn, 2003 WL 21235537, at *2 (When considering “a defendant’s failure to timely disclose the identity of testifying experts pursuant to a pretrial discovery order,” the Second Court of Appeals “look[ed] to cases discussing sanctions permitted to remedy the State’s failure to timely disclose expert witnesses for guidance.”). 17 39.14. Id. at 692. Heath also addressed the source and scope of a trial court’s authority to
fashion remedies for discovery violations. Id. at 706–08. They are a matter of the trial court’s
“inherent authority.” Id. at 706–07. Before the Michael Morton Act, “there was no general right
to discovery and Article 39.14 required a showing of good cause and the entry of a trial court
order for discovery.” Id. at 706. As a result, “cases analyzed the remedy for a statutory
discovery violation as a sanction for the violation of a court order.” Id. (emphasis added). Now,
however, discovery requirements are included in Article 39.14 itself. Id. at 707. Here, for
example, Benami acknowledges the defendant’s duty to disclose experts is found in Article
39.14(b) (in his second issue) but asserts (in his first issue) that the State did not make a timely
request so as to invoke Benami’s statutory duty under Article 39.14(b).
Since the parties did not brief Heath, the majority does not address it. Reason not to do
so can be found in Heath itself. See id. at 706 (“[O]ur prior cases focused on exclusion as a
remedy in the context of bad faith because those were the arguments raised, not because the trial
court’s inherent authority is so limited.”). Further, this is an unpublished opinion. See Williams
v. State, 603 S.W.3d 439, 444 (Tex. Crim. App. 2020) (“[T]he court of appeals’s decision to not
publish its opinion reflects its intent to not establish a precedent.” (citing TEX. R. APP. P.
47.7(a))). Further still, there is the concern that filling in gaps in the parties’ briefing veers
towards advocacy: “When an appellant has narrowed [his] arguments on appeal to address only
a particular basis for disturbing a trial court’s ruling, it is not for the appellate court to then scour
the record in search of other possible bases for reversing the trial court’s ruling on appeal.”
Wolfe v. State, 509 S.W.3d 325, 345 (Tex. Crim. App. 2017). Those are compelling reasons.
18 On the other hand, when the parties miss a recent, significant Texas Court of Criminal
Appeals case, we are not required to go along with them in muddying the waters of the law. See
Oliva v. State, 548 S.W.3d 518, 520 (Tex. Crim. App. 2018) (“We, of course, are not bound by
any agreement or concessions by the parties on an issue of law.”); Serrano v. State, 636 S.W.3d
717, 722–23 (Tex. App.—Fort Worth 2021, pet. ref’d) (citing Oliva); Young v. United States,
315 U.S. 257, 259 (1942) (“[T]he proper administration of the criminal law cannot be left merely
to the stipulation of parties.”).
The above had me teetering between these approaches. What follows tipped me into this
concurrence.
In addition to speaking to the substance of discovery obligations, Heath spoke to how a
trial court’s decision regarding discovery violations should be reviewed. Heath, 696 S.W.3d at
688–89. In one sense, there is nothing new in Heath; it used the familiar “zone of reasonable
disagreement” gauge when conducting abuse-of-discretion review. Id. at 689. But in a
significant way, Heath is new. As seen above, Heath resolved a previously unresolved question
of whether a showing of bad faith is required for a discovery violation to result in the exclusion
of evidence. Id. at 683 (“This case also requires us to consider whether a trial court has the
authority to exclude evidence that was not timely disclosed by the State absent a showing of bad
faith or prejudice.”). Having declared the concept of bad faith outdated, Heath then spoke
directly to the application of the abuse of discretion when reviewing remedies imposed by the
trial court for discovery violations:
We acknowledge that a continuance would be a much more restrained solution. But that’s not the question before us. The question before us is whether the trial 19 court had the authority to impose the remedy it did. That the trial court could have imposed a lesser remedy, assuming the formal requirements for a continuance were met, does not mean the trial court abused its discretion by excluding the evidence in this case. It may very well be that reasonable jurists could disagree about the appropriate remedy in a particular case, but unless the trial court’s decision is outside of the zone of reasonable disagreement, this Court will not overturn its ruling. We agree with the court of appeals that the trial court was within its discretion to fashion a remedy it deemed appropriate.
....
. . . . While exclusion was not the only remedy available to the trial court, it was not a remedy that was beyond the trial court’s discretion to impose.
Id. at 707–08 (footnote omitted) (citation omitted).
Reviewing a remedy for a discovery violation is what we are doing here. In my
estimation, Heath bears discussion; it is too important for too many reasons. The first reason is
that Heath explains how to apply the abuse of discretion standard of review to an exclusion of
evidence as a remedy for a discovery violation. But it is hard to stop there, because what Heath
has to say about the application of the standard of review is linked to what Heath has to say on
the substance.
The Second Court of Appeals is aware of the significance of Heath. See, e.g., Hance v.
State, 714 S.W.3d 775, 809 (Tex. App.—Fort Worth 2025, no pet.) (citing Heath, 696 S.W.3d at
703); State v. Johnson, No. 02-24-00062-CR, 2024 WL 5162689, at *14, *18–19 (Tex. App.—
Fort Worth Dec. 19, 2024, pet. ref’d) (mem. op., not designated for publication). We stand in
their shoes. See TEX. R. APP. P. 41.3. My best guess is that, rather than accepting the outdated
framework presented by the parties, our sister court would have looked to Heath. I do not,
however, believe that would have changed the outcome. On August 22, 2024, additional counsel
20 for Benami, Levine, filed a notice of appearance. Four days later, on August 26, 2024, the date
voir dire was set to begin, Levine appeared before the trial court in person. Levine stated,
“[T]here’s been a failure on the Defense’s part to pursue a number of issues that are relevant to
guilt/innocence and punishments. . . . Dr. Fallis was never asked to opine, to interview, to do
anything in regards to potential insanity at the time of the event.” Levine continued, “I can’t tell
you why; I wasn’t on the case then.” The trial court, therefore, had reason to deny the late
designation of Fallis. In its own decisions, the Second Court of Appeals has emphasized the
“restrained solution” aspect of Heath. Johnson, 2024 WL 5162689, at *19 (quoting Heath, 696
S.W.3d at 708). On appeal, however, Benami asserts that the trial court erred by excluding the
testimony of Fallis; Benami does not assert that the trial court erred by not granting a
continuance.21 Thus, in my view, it would have come down to Heath: “While exclusion was not
the only remedy available to the trial court, it was not a remedy that was beyond the trial court’s
discretion to impose.” Heath, 696 S.W.3d at 708.
Jeff Rambin Justice
Date Submitted: July 2, 2025 Date Decided: October 15, 2025
Do Not Publish
21 Benami notes that he did request a continuance in the trial court, but he does not tie that fact to a request in the court of appeals. Nor did Benami brief whether “the formal requirements for a continuance were met” as discussed in Heath. Heath, 696 S.W.3d at 708. 21