Deamus v. State, No. 05-15-01182-CR (Tex. App.—Dallas Aug. 22, 2017) (mem. op. not designated for publication).
Facts: Prosecutor failed to turn over witness statement when discovery order required turning over any written or oral statement by any party or witness which might in any manner be material to guilt/innocence or punishment.
Holding: Reverse for new trial without the statement. Prosecutor’s explanation (work product) and the record show the prosecutor “consciously disregarded a plain directive in the discovery order . . . in order to gain a tactical advantage” Even though the conduct here was willful, negligent or reckless could require exclusion IF defendant “suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.”
See also Oprean v. State, 201 S.W.3d 724, 730 (Tex. Crim. App. 2001) (Cochran, J., concurring): Common courtesy, though not a legal requirement, will oft-times ameliorate an otherwise dubious legal position.