dissenting.
I dissent. The judgment should be reversed because concealment of the incriminating tape recording denied appellant his constitutionally protected right to effective assistance of counsel.
The Court’s analysis of disclosure in terms of Brady v. Maryland is wholly inappropriate. As the Court suggests, materiality in due process terms refers to the discovery of matters exculpatory in nature. Materiality under V.A.C.C.P., Article 39.14, however, has been nowhere so defined. It should be abundantly clear from even a cursory reading of Article 39.14 that the Legislature intended no such restrictive definition and that Article 39.14 was not meant to be a mere codification of Brady v. Maryland. Materiality in the context of Article 39.14 should be accorded its commonly understood legal meaning. As said in Weinstock v. United States, 97 U.S.App. D.C. 365, 367, 231 F.2d 699, 701 (D.C.Cir. 1956), “[T]o be ‘material’ means to have probative weight: i. e., reasonably likely to influence the tribunal in making a determination required to be made.” Accordingly, the cases cited by the Court are inapposite. The Legislature has chosen, by enacting Article 39.14, to authorize a broader range of discovery than the minimum due process requirements of Brady v. Maryland.
The Court peremptorily dismisses appellant’s claim that his right to effective as*948sistance of counsel was infringed upon, saying that “. . . discovery of the State’s evidence prior to trial so as to permit more effective plea bargaining is not a component of the constitutional right to effective assistance of counsel.”
I do not suggest that we should elevate plea bargaining to the status of a constitutionally protected right. I am of the view, nonetheless, that the Sixth Amendment mandates that defense counsel not be unduly hampered in the exercise of his obligation to effectively represent his client. This is so no matter what aspect of a criminal prosecution is the immediate focus of counsel’s advice to his client. Accordingly, where, as here, information which is properly within the compass of discovery is denied defense counsel because of an affirmative act of misconduct on the part of the State, the defense function is crippled to the extent the information concealed has a bearing on the advice counsel might have given. To declare that counsel should have available to him, as a basis for advice to his client, all information to which he is legally entitled is to announce no new theory of law. As stated in American Bar Association, Standards Relating to the Defense Function, 227 (Approved Draft 1971), “The relationship of effective investigation by the lawyer to competent representation at trial is patent, for without adequate investigation he is not in a position to make the best use of such mechanisms as cross-examination or impeachment of adverse witnesses at trial or to conduct plea discussions effectively.” (emphasis supplied). Quite clearly, the prosecutorial behavior of which we speak here represents an unwarranted interference with the discharge of defense counsel’s duty to investigate.
It is no answer to say that the trial court could have, in the exercise of his discretion under Article 39.14, denied discovery, even had he been made aware of the existence of the tape recording. Judicial discretion is not a mere intellectual exercise which can be invoked by advertence to a hypothetical state of facts. If the trial court was led to believe, as he was, that no tape recording existed, then he cannot be said to have exercised discretion as to its discovery.
Moreover, the record is clear that the trial court erroneously believed that permitting discovery of the tape was not even within his discretion. Accordingly, the Court’s citation to authority holding that discretion exercised for the wrong reason will not vitiate a judgment based thereon, so long as the decision reached is within the permissible bounds of discretion generally, has no application in this case. The anomaly of suggesting that a trial court exercised discretion when he thought the exercise of discretion was not within his power should be apparent.
The Court relies strongly on the authority of cases which deal with the failure of the State to reveal the existence of Brady material. As I have stated heretofore, the Brady standard has no application to discovery under V.A.C.C.P., Article 39.14. What is more important is that the case at bar presents no mere failure to disclose. The record reveals a deliberate misrepresentation by the prosecution.
Where the record reveals affirmative misconduct on the part of the prosecution, compounded by an erroneous trial court ruling, we should not require a showing of great harm to find reversible error. Particularly should this be so where we review the record of a capital case, which is qualitatively different from a noncapital case. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). We are not here faced with a mere failure to disclose Brady material. Neither are we simply faced with a failure to make disclosure under Art. 39.14. What we are confronted with is a misrepresentation. The State offered to recommend a life sentence in exchange for appellant’s plea of guilty. It affirmatively misrepresented the strength of its case. As a result, appellant’s counsel were misled when they advised their client on his plea, which represented a life or death decision.
I would hold that appellant was denied the right to effective assistance of counsel and would, accordingly, reverse the judgment and remand the cause for a new trial.
PHILLIPS, J., joins in this dissent.