New Trial on Newly Discovered Evidence in Texas

What Counts as Newly Discovered Evidence in Texas?

Newly discovered evidence is material, favorable proof that existed at the time of trial but was genuinely unknown and unavailable to the defense, and that reasonable diligence would not have turned up. Texas authorizes a new trial on this ground by statute, but the standard is demanding and the evidence must be far more than merely helpful.

The controlling statute is short. Article 40.001 of the Code of Criminal Procedure provides that a new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. That single sentence has been interpreted by the Texas Court of Criminal Appeals for more than a century, and the courts have layered a four-part test on top of it to keep the ground from swallowing the finality of verdicts.

Two phrases carry most of the weight: “discovered” and “since trial.” The evidence has to be something that came to light after the verdict, not something the defense sat on or could have developed earlier. A third party’s records that surface later, a confession by someone else, or a witness who was unknown and untraceable at trial are typical examples. But the mere fact that testimony is new does not make it newly discovered in the legal sense. Courts distinguish evidence that was truly hidden from evidence that simply was not used, and they treat post-trial changes of heart — a witness who “would now say” something different — with particular caution. Every claim still has to clear each prong of the test below, and a strong showing on one prong cannot rescue a weak showing on another.

The Four-Part Keeter Test

Texas courts read article 40.001 through a four-part test drawn from Keeter v. State and restated in Carsner v. State. A defendant must satisfy every prong, and the failure of any one defeats the motion. The prongs screen for genuine surprise, defense diligence, the quality of the evidence, and its likely effect on the outcome.

The requirements come from Keeter v. State and were restated by the Court of Criminal Appeals in Carsner v. State. Because the test is conjunctive, a trial court that finds even one prong missing may deny the motion without reaching the others, and a reviewing court will uphold that denial unless no reasonable view of the record could support it.

The fourth prong does the most analytical work. The Court of Criminal Appeals in Keeter explained that the “probably true” language is really an aspect of the materiality requirement: evidence the trial judge does not believe cannot be expected to change a result. That is why the credibility of a new witness, discussed below, is central to the analysis rather than a side issue, and why an affidavit that looks powerful on paper can still fall short at a live hearing.

Why Due Diligence Decides Most of These Motions

The diligence prong sinks more of these motions than any other. The court does not ask whether the new evidence is powerful today; it asks whether a reasonably diligent defense could have found it before the verdict. Evidence that a competent pretrial investigation would have surfaced is not newly discovered, however favorable it may be.

Diligence is measured by what the defense actually did and reasonably could have done. A movant has to describe the investigation — the witnesses interviewed, the records subpoenaed, the leads followed — and explain why the new information stayed hidden despite those efforts. Courts routinely deny motions where the source of the evidence was known before trial, where a witness was available and simply not called, or where a straightforward subpoena or public-records request would have produced the material. A conclusory statement that the evidence “could not have been found” is not enough; the motion must show the specific steps taken.

This is also where the ground overlaps with, and is often reframed as, a claim of ineffective assistance of counsel. If the reason the evidence was not found is that trial counsel failed to investigate, the stronger vehicle may be an ineffective-assistance claim rather than a newly-discovered-evidence claim, because the diligence prong is designed to defeat exactly that fact pattern. A companion page in this guide addresses building an ineffective-assistance record. For a pure article 40.001 motion, the defense must persuade the court that the evidence was beyond reasonable reach at the time of trial, not merely overlooked in hindsight.

Recanting Witnesses and the Probably-True Requirement

When a State witness recants after trial, the judge, not the jury, decides whether the recantation is probably true. Under Keeter, the trial court sits as fact-finder at the new-trial hearing and may disbelieve a recantation as long as the record gives some basis to doubt it. Recantations are viewed with caution.

Recantation cases are common because a complaining witness or an accomplice sometimes changes course after the trial ends. In Keeter v. State, the Court of Criminal Appeals held that the trial judge determines the credibility of witnesses and whether the new evidence is probably true, and that the judge acts within his discretion in disbelieving a recantation so long as the record supplies some basis for doing so. The hearing is not a formality; it is where the motion usually lives or dies.

The court listed recurring reasons a judge may reject a recantation: evidence that the recanting witness was pressured by family members or threatened by co-conspirators, proof that part of the recantation is itself false, circumstances showing the witness recanted after moving in with the defendant’s family, or an accomplice who recants only after being convicted. Because the standard of review is abuse of discretion, a trial court’s decision to disbelieve a recanting witness is difficult to overturn on appeal. The practical lesson is that a recantation standing alone rarely carries a motion; it should be corroborated by independent facts and must survive the judge’s credibility assessment before it can satisfy the fourth prong.

Evidence That Is Merely Cumulative or Impeaching

Evidence that only piles onto what the jury already heard, or that merely impeaches a witness, generally will not support a new trial. But Carsner v. State makes clear that impeaching evidence can still qualify when it is material and would probably change the result independent of its impeaching value. The dividing line is the word “merely.”

In Carsner v. State, the Court of Criminal Appeals recognized that newly discovered testimony can both impeach a witness and be independently material. When the new evidence would probably bring about a different result apart from its impeaching tendency — for example, testimony that not only undercuts a State witness but also affirmatively points to someone else — the fact that it also impeaches does not disqualify it. The defense should frame the evidence by its substantive force, not just its capacity to make a witness look bad.

The opposite problem is evidence that was never really new. In State v. Thomas, the Court of Criminal Appeals held that the failure to call an exculpatory witness who was available at trial and known to the defense is not, by itself, a valid legal claim for a new trial. A witness the defense knew about and chose not to call is not newly discovered evidence; at most, the decision not to call that witness might support a different claim, such as ineffective assistance. Sorting genuinely new, material evidence from evidence that was simply unused is the heart of a well-drafted motion, and it is the sorting that most often separates a granted motion from a denied one.

When the Prosecution Withheld the Evidence: The Brady Overlap

Sometimes the reason evidence was not found at trial is that the State suppressed it. That is a different animal from ordinary newly discovered evidence. Under Brady v. Maryland, the prosecution’s suppression of favorable, material evidence violates due process regardless of good faith, and the diligence analysis looks very different.

When favorable evidence was in the State’s hands and was not disclosed, the claim is governed by Brady v. Maryland rather than by article 40.001 alone. The Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Materiality in the Brady sense means a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.

The distinction matters most at the diligence prong. A pure newly-discovered-evidence claim can fail because the defense could have found the evidence itself; a Brady claim, by contrast, focuses on the State’s constitutional duty to disclose favorable material, and courts do not let the prosecution benefit from hiding evidence the defense had no fair way to obtain. For that reason many post-trial motions plead both theories in the alternative — article 40.001 for evidence that surfaced innocently, and Brady for evidence the State should have turned over — so the trial court can grant relief on whichever theory fits the facts that emerge at the hearing.

Filing, Hearings, and Deadlines

The motion for new trial must be filed within 30 days after the trial court imposes or suspends sentence in open court, presented to the court within 10 days of filing, and ruled on within 75 days or it is overruled by operation of law. Supporting affidavits are ordinarily required to earn a hearing.

Timing is unforgiving. Under Rule of Appellate Procedure 21.4, the motion must be filed within 30 days after sentencing, and any amendment must come within that same window before the court rules. The defendant must present the motion to the court within 10 days of filing, and under Rule 21.8 the court must rule within 75 days after sentence is imposed or the motion is denied automatically. Missing any of these deadlines usually forfeits the ground, which is why a newly-discovered-evidence claim is time-critical even though the whole premise is that the evidence surfaced late.

A newly-discovered-evidence motion should be supported by affidavits from the new witnesses or records custodians, because the motion has to raise matters not determinable from the existing record in order to earn a hearing. At the hearing, the defendant carries the burden of proving all four prongs, and the trial judge weighs credibility and decides whether the evidence is probably true. If the motion is granted, the case is restored to its pretrial posture for a new trial; if it is denied, the ruling is reviewed only for an abuse of discretion, a deferential standard that makes the record built at the trial-court hearing decisive on appeal.

Where This Fits

This guide is one of four situations that arise under the Motion for New Trial. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) — New trial on newly discovered evidence requires a four-part test; the trial judge decides witness credibility and whether the evidence is probably true.
• Carsner v. State, 444 S.W.3d 1 (Tex. Crim. App. 2014) — Newly discovered evidence that also impeaches may still support a new trial when it is material and would probably change the result independent of impeachment.
• State v. Thomas, 428 S.W.3d 99 (Tex. Crim. App. 2014) — Failure to call an exculpatory witness available at trial and known to the defense is not, by itself, a valid legal claim for a new trial.
• Brady v. Maryland, 373 U.S. 83 (1963) — Suppression by the prosecution of evidence favorable and material to guilt or punishment violates due process, irrespective of the prosecution's good or bad faith.

General summaries of published opinions for information only — not predictions about any specific case.