When exculpatory evidence is missing, Texas criminal defense lawyers must sometimes look beyond the discovery file to find the truth.
I recently represented a North Texas client whose case demonstrated exactly why. My client faced serious family violence allegations. Police arrested him for Assault of a Pregnant Person, Terroristic Threat, and Interference with an Emergency Call. He denied the allegations from the beginning. More importantly, he told me something that should have made the case easy to investigate.
He had recorded the entire incident on his phone.
The recordings should have shown what happened before police arrived. There was only one problem. The videos were missing from the State’s discovery.
The Evidence My Client Said Existed Was Not in Discovery
According to my client, he anticipated trouble before police arrived. He therefore used his phone to record the encounter. Police arrested him without reviewing those recordings. The consequences were immediate and severe. My client remained in jail for approximately four months before making bond. He also lost his opportunity to enter the Navy.
When I received discovery, I reviewed the extraction of his phone. The videos were not there. That presented an obvious problem. My client remained adamant that he had made the recordings and had never deleted them. I continued asking about the missing evidence. I was repeatedly told that the videos did not exist.
A Digital Extraction Is Not Necessarily the Entire Device
Digital evidence plays an increasingly important role in criminal cases. Phones can contain photographs, videos, messages, location information, application data, and other evidence. That evidence can support the prosecution. It can also prove the defense. Yet lawyers should not automatically assume that a digital extraction contains everything stored on a device. Software can fail. Files can fail to transfer. Export processes can omit information. Technical problems can also prevent evidence from reaching a prosecutor’s discovery system.
That distinction mattered enormously in this case.
We Asked the Court for Access to the Actual Phone
My client knew the recordings existed. I saw no reason to accept an incomplete extraction as the final answer. I eventually obtained a court order allowing us to inspect the physical phone. Before that inspection occurred, prosecutors provided a disk that supposedly contained the missing videos. I opened it. It contained spreadsheets. It did not contain the videos. We then arranged to inspect the actual phone at the police department. The detective, two prosecutors, my client, and I attended. We unlocked the phone.
The videos were still there.
The Actual Phone Told a Very Different Story
The recordings mattered because they captured the encounter itself. They supported my client’s account and contradicted significant allegations against him. For example, the allegations included a claim that my client threatened the complainant. The recordings did not show such a threat.
They also undermined the theory behind the Interference with an Emergency Call charge. My client did not prevent the complainant from calling 911. The videos instead showed him laughing and encouraging her to make the call.
The detective appeared surprised by what we found. The prosecutors then explained that the phone extraction had experienced technical problems. According to that explanation, the videos could not be uploaded into the Axon evidence system.
That explanation raised another important question.
What happens when favorable evidence exists, but the defense never receives it?
Texas Prosecutors Have Discovery Obligations
Texas law gives criminal defendants substantial discovery rights. Article 39.14 of the Texas Code of Criminal Procedure requires the State to produce certain evidence after a timely defense request. The statute covers documents, recordings, photographs, objects, and other tangible evidence.
Article 39.14 also contains an independent disclosure requirement for favorable evidence. Prosecutors must disclose exculpatory, impeachment, and mitigating evidence that tends to negate guilt or reduce punishment.
These obligations matter because criminal defense attorneys cannot investigate evidence they do not know exists. A prosecutor may have received an incomplete digital extraction. A police evidence system may have failed to upload a file. An investigator may have overlooked something. The reason matters when courts consider certain remedies.
But the practical problem remains the same for the accused:
Important evidence can exist even when it does not appear in the discovery portal.
The State Dismissed the Charges Before the Hearing
After viewing the recordings, I continued asking prosecutors to dismiss the remaining charges. They did not immediately do so. I eventually filed a motion asking the court to address the discovery issue. The court scheduled the matter for a pretrial hearing. Approximately ten minutes before that hearing, the State filed motions to dismiss. The judge ultimately dismissed the remaining cases with prejudice.
Because the cases had been dismissed, the court declined to decide the discovery issue. My client’s criminal cases were finally over. The damage caused by the accusations was not.
A Dismissal Cannot Give Someone Four Months Back
People often talk about dismissal as though it completely restores a criminal defendant. It does not. By the time this case ended, my client had spent approximately four months in jail. His family incurred substantial costs to secure his release. He had paid for electronic monitoring. He had incurred attorney’s fees. Most significantly, he lost his opportunity to enter the Navy.
After his release, his pending criminal charges also made employment difficult. He eventually found work delivering appliances for approximately $15 per hour. The State eventually dismissed every charge. But dismissal could not return the months he spent incarcerated. It could not restore the opportunities he lost while the accusations remained pending.
That is one reason criminal defense lawyers must investigate cases independently.
What This Case Teaches About Digital Evidence in Texas Criminal Cases
This case reinforced several lessons that apply well beyond one client or one county.
First, criminal defense lawyers should listen carefully when clients identify missing evidence. A client may know what exists on a device better than anyone reviewing an extraction.
Second, a digital extraction should not always end the investigation. If something important appears missing, counsel should determine why.
Third, the original device may matter. Inspecting the phone itself resolved a question that months of discovery requests had not resolved.
Fourth, technical failures can have real constitutional and practical consequences. A missing video is not merely a computer problem when someone’s liberty depends on it.
Finally, defense lawyers should document their requests. Repeated written requests can become important when discovery disputes reach the courtroom.
What Should You Do If Important Evidence Is Missing From Your Criminal Case?
A defendant should tell his or her attorney immediately about evidence that appears to be missing. Be specific. If you remember recording a video, identify the device. If messages are missing, identify the application and people involved. Tell your attorney when the evidence was created and what you believe it shows. Do not assume police recovered everything simply because they searched or extracted your phone. Likewise, do not alter or delete information from a device involved in a criminal investigation. A criminal defense attorney can evaluate the available discovery and determine what additional investigation may be appropriate.
Depending on the circumstances, that may include additional discovery requests, subpoenas, forensic examination, or a request for court intervention.
Criminal Defense Requires More Than Reading the Police Report
The most important evidence in this case was not hidden in an obscure legal argument. It was sitting on a phone. My client told police about it. He later told me about it. Yet the discovery produced to the defense did not contain it. We kept looking. Eventually, we found the recordings on the device itself. Those recordings provided critical evidence about what actually happened.
Every criminal case presents different facts. No attorney can guarantee that missing evidence exists or that additional investigation will produce favorable evidence. But when a client’s freedom depends on the answer, “it isn’t in the discovery” should not always end the inquiry.
This article discusses a prior case for educational purposes. Past results do not guarantee similar outcomes in future cases. Every criminal case depends on its individual facts and circumstances.