Dover v. State

• Decision Date: 08 November 1967
• Docket Number: No. 40768,40768
• Citation: 421 S.W.2d 110
• Parties: Earnest Lloyd DOVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 110

421 S.W.2d 110

Earnest Lloyd DOVER, Appellant, v. The STATE of Texas, Appellee.

No. 40768.

Court of Criminal Appeals of Texas.

Nov. 8, 1967.

Rehearing Denied Dec. 13, 1967.

James A. Moore, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phylis Bell and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., life.

In view of our disposition of this appeal, a recitation of the facts is not deemed necessary. Appellant urges one ground of error. He contends that the trial court committed reversible error in refusing to allow the appellant the use of a witness' offense report for cross-examination purposes and in refusing to examine the same in camera for possible inconsistencies, and in refusing to incorporate said report in the record for the purpose of appeal.

In rebuttal the State called L. H. Meyers, Jr., a city of Houston police officer, who was the only police officer to testify during the trial. On direct examination he related that on August 5, 1965, (the date of the alleged offense) while on duty he saw the appellant at a location approximately nine (9) blocks from the place where the testimony showed the robbery to have taken place. He further related that the appellant was in his presence from 8:30 to 9:30 p.m. on that occasion and that the location where the first observed the appellant was some fifteen (15) miles from the location where appellant's alibi witnesses had placed him at that time.

On cross-examination appellant's counsel requested the witness' offense report. The report had not been exhibited or used by the State in the presence of the jury and appears to have been prepared by Officer Barta, the witness' partner. Nevertheless, when the witness acknowledged having examined the one-page report the day before and related that he considered the report his own, the court granted the request. Thereafter the district attorney handed the report to appellant's counsel.

At such time it appears that appellant's counsel observed that there were 'supplementals' stapled to the one-page offense report, and he requested the production of the entire police report. The court denied such request, as well as the request that the court examine the remainder of the report in camera to determine if there were any inconsistencies between the witness' testimony and that portion of the report to which appellant had been denied access. The court, likewise, refused the request to incorporate in the reocrd the 'supplementals.'

It was shown by Officer Meyers' testimony that neither he nor his partner had prepared the supplemental offense report and that he had not refreshed his memory therefrom. It does appear though at the time he examined his partner's one-page summary the entire report had been stapled together. The record does not reflect who had prepared the remainder of the report of the Houston Police Department.

In support of his contention appellant cites and relies upon Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936, and Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528.

It is readily apparent that we are not here dealing with the requested production (for purposes of cross-examination and possible impeachment) of a previous and presently available statement shown by the evidence to have been made by a State's witness himself. The rules applicable thereto are discussed and distinguished in Sewell v. State, Tex.Cr.App., 367...