Cullen v. State

• Decision Date: 05 November 1986
• Docket Number: No. 332-84,332-84
• Parties: Kenneth Michael CULLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 195

719 S.W.2d 195

Kenneth Michael CULLEN, Appellant, v. The STATE of Texas, Appellee.

No. 332-84.

Court of Criminal Appeals of Texas En Banc.

Nov. 5, 1986.

Travis W. Young, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Michael Jergins and Mary Thornton Taylor, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

The Gaskin rule provides that when a State's witness has made a report or has given a statement prior to testifying, the defendant, after a timely request, is entitled to inspect and use such prior available report or statement for cross-examination and impeachment purposes, even though the witness may not have used the instrument to refresh his memory. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1961); Pinson v. State, 598 S.W.2d 299 (Tex.Cr.App.1980); Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972). If a defendant invokes the Gaskin rule, it is error for the trial judge to fail to require production of the statement or report. However, harmfulness of the error is determined by considering whether the accused was thereby denied effective cross-examination or possible impeachment of the witness. Pinson v. State, supra; Mendoza v. State, supra; Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974); Moore v. State, 509 S.W.2d 349 (Tex.Cr.App.1974).

On appeal in the instant case, appellant argued that the Gaskin rule was violated when the trial court denied his request to hear tape recordings of the prosecutor's interviews with State's witness Miller, a codefendant of appellant. Appellant made his requests twice during his case--once during pretrial proceedings and then again during trial during his cross-examination of Miller. The Court of Appeals in an unpublished opinion correctly held that statements from pretrial witnesses are exempt from pretrial discovery under Article 39.14, V.A.C.C.P. The Court of Appeals further found that when the Gaskin rule comes into play after a witness has testified, Article 39.14, supra, no longer controls. Thus statements from witnesses are subject to discovery by the defense after those witnesses have testified on direct examination at trial. The Court of Appeals also held that the tape recorded interview in the instant case was analogous to a prosecutor's notes taken of an interview with a prospective witness and thus did not constitute "statements" within the meaning of the Gaskin rule. The Court went on to hold that even if the tape recordings were subject to the Gaskin rule, the error, if any, was harmless since the recording was consistent with the testimony of the witness at trial. Cullen v. State, No. 2-82-102-CR (Tex.App.--Ft. Worth, January 11, 1984). We granted appellant's petition to review the decision of the Court of Appeals.

Appellant contends in his petition for discretionary review that the State should not be able to avoid the Gaskin rule simply by making a tape-recorded statement rather than a written statement. We agree. A reading of Gaskin v. State, supra, shows that although that case involved written reports prepared by the arresting officers, the rule as announced therein was not restricted solely to written statements. And although some of the cases decided since Gaskin v. State, supra, cite the rule as applying only to written statements or reports, we do not interpret the Gaskin rule to be so limited. Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.1979); Moore v. State, supra; Moore v. State, 384 S.W.2d 141 (Tex.Cr.App.1964).

Several cases have come before this Court in which the question of the application of the Gaskin rule to tape-recorded statements has been presented. This Court, however, has never squarely addressed the issue. In Pinson v. State, supra, the accomplice witness Burns revealed during cross-examination that he had given a statement which had been tape-recorded and later transcribed. This Court failed to reach the merits of the case because Pinson had failed to make an effort to obtain the witness's statement for purposes of the appellate record.

Williams v. State, 542 S.W.2d 131 (Tex.Cr.App.1976), also involved the tape-recorded statement of an accomplice witness. The Court ruled that since the witness's statement on the tape referred only to other transactions and not to the transaction for which the appellant was being tried, the Gaskin rule had not been violated. Furthermore none of the material contained on the tape could have been legitimately used in the cross-examination of the witness. Although not specifically holding that tape-recorded statements might be subject to the Gaskin rule, the Court in its discussion of the merits of Williams' claim certainly seemed to make that assumption.

It seems a similar assumption was made in Johnson v. State, 650 S.W.2d 784 (Tex.Cr.App.1983). Johnson was arrested and charged with criminal solicitation after he solicited Roger Bryant to murder John Lee. At the time of the solicitation, Bryant was cooperating with law enforcement officers and was wearing a hidden microphone. Appellant's conversation with Bryant was tape-recorded. A transcript was made of the recording. Prior to trial DPS agent Scott and DPS Sgt. Roberts listened to the tape and supplied some words that were missing from the transcript because they had been garbled on the recording. Johnson argued on appeal that the Gaskin rule was violated when the trial court refused to allow him to examine the notes of DPS agent Scott relative to his recollection of the taped conversation between appellant and Bryant. Johnson maintained that the transcript of the taped conversation and DPS agent Scott's notes were in effect a statement prepared by him and thus subject to the Gaskin rule. This Court held that DPS agent Scott's and DPS Sgt. Robert's additions to the transcript of the recording were an interpretation of the original tape and thereby a work product of the State. The transcript itself and the original tape were recordings of statements by the appellant and Bryant, not of Scott and Roberts. Because the Gaskin rule applies only to statements of witnesses, this...