Campos v. State, 43851

• Decision Date: 09 June 1971
• Docket Number: No. 43851,43851
• Citation: 468 S.W.2d 81
• Parties: Cesario CAMPOS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 81

468 S.W.2d 81

Cesario CAMPOS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43851.

Court of Criminal Appeals of Texas.

June 9, 1971.

Nathan O. Newman, II, Abilene, for appellant.

Ed Painter, Dist. Atty., and Lynn Ingalsbe, Asst. Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for attempted burglary with the punishment being assessed at 3 years.

The sufficiency of the evidence is not challenged.

We shall initially consider appellant's claim that the trial court erred in refusing prior to trial 'to make any type of in-camera inspection of the State's prosecutor's file, or to make such an inspection of any other State agencies' file to determine if the same contained matters which could be used for impeachment of any or all of the State's witnesses during the trial * * *.'

The record does not reflect that such pre-trial motion was ever presented to and acted upon by the trial judge.

Further, the motion appears to be too broad to be effective. Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728; Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807; Smith v. State, Tex.Cr.App., 409 S.W.2d 408; See also Bryant v. State, Tex.Cr.App., 423 S.W.2d 320.

And by virtue of the express provisions of Article 39.14, V.A.C.C.P., the appellant was not entitled to the pre-trial statements of witnesses and the work product of counsel and their investigators, their notes and reports.

Appellant does cite Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Only recently we had occasion to discuss at length the constitutional duty of a prosecutor to disclose. Means v. State, Tex.Cr.App., 429 S.W.2d 490. We find no indication of a violation of that duty in the case at bar.

And in Bell v. State, 442 S.W.2d 716, 718, this Court wrote:

'We further note that nowhere in the record has appellant shown that matters sought to be discovered were material to appellant's defense or material to the issue of punishment, or that material matters sought to be discovered were in the possession of and withheld by the state. The Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, line of cases do not stand for the proposition advanced by appellant here--that she should have been granted carte blanche in rummaging through the state's files in the hope of uncovering some shred of evidence which might be of assistance to her either on the issue of guilt or punishment. * * *'

Next, in several grounds of error appellant urges that the trial court erred in refusing to make an in-camera inspection of the written statement of the witness Efrain Vargas and the offense reports made by Police Officers Stovall and Petty, who testified for the State.

The requests for the in-camera inspections were made during the cross-examination of each of the witnesses, and were apparently made for the purpose of having the court determine any inconsistency with the testimony of each witness and to determine the availability of such statement or reports to the appellant for the purpose of cross-examination and possible impeachment. In each instance, the court refused to make such an inspection.

The record does not reflect that the statement or offense reports were used in any manner before the jury so as to bring into play the 'use before the jury' rule. ¹ Harris v. State, 172 Tex.Cr.R. 421, 358 S.W.2d 130; Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97.

Since the statement and offense reports were made by the witnesses themselves, the so-called 'Gaskin rule' was applicable. This rule is limited to a previous statement made by the witness testifying for the State. Artell v. State, Tex.Cr.App., 372 S.W.2d 944. ² The 'rule applies where demand is made after the witness has testified on direct examination and is for the purposes of cross-examination, and possibly impeachment purpose, Whether the statement has been used by the witness before trial to refresh his memory or not.' Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467. (emphasis supplied) ³

'If an accused brings himself within this rule, then it is error for the trial judge to jail to require production of a prior and available statement of the witness, though the error may be harmless. The harmfulness of the error is dependent upon whether an examination of the statement by this Court demonstrates that the defendant should have been allowed the statement for the purpose of cross-examination and possible impeachment. Error, of course, will result if the defendant is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any.' Rose v. State, Tex.Cr.App., 427 S.W.2d 609, 612 (concurring opinion).

In the case at bar appellant was entitled to the statement and offense reports under the so-called 'Gaskin rule,' Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936; Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528; Hughes v. State, 172 Tex.Cr.R. 441, 358 S.W.2d 386, and asked for less than he was entitled to in only requesting that the trial judge make an in-camera inspection. Even though this is true, we know of no requirement that under such circumstances the court must make in-camera inspection or that reversible error is presented. The statement and offense reports should have been made available to the appellant, but we deem the error harmless. The statement and offense reports, apparently in qualification of appellant's formal bill of exceptions, were sealed by the trial judge and attached to the appellate record. See Rodriguez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406. Our examination of the short...