1. “Did the court of appeals err by reversing the trial court’s discovery sanction order under a theory not raised by the State?”
2. “Was Appellee’s discovery request sufficient under the Michael Morton Act?”
3. “Is the State estopped to challenge the sufficiency of Appellee’s discovery request because it produced discovery in response to the request?”
After Heath was indicted, defense counsel e-mailed a request to the prosecutor that stated, in its entirety, “Can I get discovery on this client? Cause #2017-241-C2.” The prosecutor discovered the existence of a 911 call 11 days before trial, and defense counsel received it five days later. He filed a motion to exclude the recording for violating Tex. Code Crim. Proc. art. 39.14(a) (the Michael Morton Act), which was granted.
The State appealed, arguing that the trial court’s sanction was an abuse of discretion. The court of appeals did not address those arguments. Instead, it held that defense counsel’s e-mail was not an adequate request under Article 39.14 because it neither mentioned the Act nor designated what items he sought.
Heath makes three arguments. First, a court of appeals may not supply an argument that was not raised by the losing party at a motion to suppress. Second, if it could, his request for discovery was sufficient because there is only one discovery statute in Texas and forcing the defendant to designate discoverable items it does not know about would frustrate the purpose of Article 39.14. Third, the State had no apparent problem understanding his request because it responded by (eventually) producing the 911 call; it should therefore be estopped from prevailing on that theory.