The short answer is that Article 39.14 of the Texas Code of Criminal Procedure says that you can’t. Your attorney can have a copy and show you the police report, but you are not entitled to one yourself.
As the Defendant, you have certain rights when it comes to what you (and more specifically your Arlington, TX criminal defense lawyer) get from the State after they have charged you with an offense. The Texas Legislature has listed out what the State must give you once formal charges are brought against you. Article 39.14 mandates that the State gives the defense all evidence in it’s possession that is favorable and material to any matter in the case. Examples of this include all police reports, supplements, dash cam videos, body cam videos, lab reports, forensic reports, and anything else that is given to the State by a third party. It is hard to think of something that the State can withhold from you that you can’t argue is material and relevant to your case.
What is “favorable” and “material” evidence? The three general categories of favorable evidence include: exculpatory evidence, impeachment evidence, and mitigating evidence. Something is exculpatory if it tends to show that you are not guilty of the offense for which you are charged. Something is impeachment evidence if you could use it to question the credibility of a witness or the authenticity of a piece of evidence. Finally, something is mitigating if it shows that although you are guilty of the offense, you are not as culpable and deserve a less severe punishment. Let’s use an example to show how the prosecutor can obtain these three pieces of evidence that he/she must turn over to you as soon as practicable after receiving the evidence.
Let’s say you are involved in a bar fight. It’s late, it’s dark, and you exchange words with someone after you both have been drinking. Now even though you didn’t start the fight, you’ve been told since you were young that you will be sure to end the fight. When the police arrive, they see that the other person (i.e. the “victim” or “complaining party”) lost the fight and therefore they arrest you. Of course, this isn’t fair and isn’t the law when it comes to charging you with a class a misdemeanor assault, but a lot of times this is how bar fights go. If a witness to the fight tells the prosecutor that the complaining party was hitting on your girl and threw the first punch, this is exculpatory in that it shows that you are not guilty of a class a assault (you may be guilty of a class c assault, but that is not as severe and you have a better chance of getting that off your record). If the complaining party says that he had 3 beers and 2 shots, then you can use this to impeach him by questioning his credibility and his ability to remember that night. If the prosecutor asks the complaining party what they would like to see happen with the case and they say that they are good with probation, then the prosecutor must disclose this fact to you as it is mitigating to your punishment.
What happens if the State fails to disclose evidence to you that they should have? If that is the case, there are several remedies. First, the judge needs to hear what evidence was not turned over, how relevant that evidence is to the case, when was the evidence discovered and how soon after it was discovered was it disclosed, and was it intentionally or just negligently not disclosed? Depending on the answers to these questions, the judge can give you more time in the form of a continuance to look into the matter, find that the evidence is inadmissible, declare a mistrial, and even dismiss the case. If the judge finds that the withholding of evidence was intentional and so prejudicial that you are unable to have a fair trial under the due process clause of the United States or Texas Constitutions, then the judge could order that the case be dismissed with prejudice so that you can never be prosecuted for the offense. This is a rare remedy, but it is available to you if the error is great enough and your attorney can show how harmed by the error you are.
Thank you to our friends and contributors from Brandy Austin Law Firm, PLLC for their insight into police reports and criminal defense.