Commercial litigators work from a deep well of pretrial tools: depositions, document production, interrogatories, mandatory disclosures. Each side gets to preview much of what the other intends to argue long before trial begins. Criminal defense does not work that way. That gap became relevant when Todd Mensing, a board-certified civil trial attorney with Houston firm AZA Law, took on a pro bono capital murder defense in State of Texas v. Johnson.
Texas prosecutors operate under the Michael Morton Act, a 2013 reform that rewrote Article 39.14 of the state’s Code of Criminal Procedure. It requires disclosure of offense reports, witness statements and material evidence on request. The Texas Court of Criminal Appeals broadened that standard further in Watkins v. State, ruling that evidence counts as material if it has any logical connection to a disputed fact, even a small one.
Even with those statutory protections in place, criminal defendants still do not receive depositions of the state’s witnesses before trial. Civil litigants can question witnesses under oath months in advance and build their cross-examinations from transcripts. Criminal defense lawyers do not get that luxury. They work instead from offense reports and prior statements, and the prosecution’s trial strategy can still shift once testimony actually begins.
Mensing, whose regular caseload runs through the civil discovery process on commercial disputes involving energy, intellectual property and other business matters, tried the Johnson case alongside Houston criminal defense attorney Christian Capitaine. Johnson did not testify. Jurors deadlocked eight to five in favor of acquittal, resulting in a mistrial, and the Harris County District Attorney’s Office declined to pursue the case again.
That result ended what had been a 75-0 record for the office in capital murder trials. It is a case study in how differently the rules operate once a matter moves from a civil courtroom into a criminal one.