Epperson v. State

• Decision Date: 20 January 1983
• Docket Number: No. 12-81-0003-CR,12-81-0003-CR
• Parties: Knox EPPERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 110

650 S.W.2d 110

Knox EPPERSON, Appellant, v. The STATE of Texas, Appellee.

No. 12-81-0003-CR.

Court of Appeals of Texas,

Tyler.

Jan. 20, 1983.

Ron Adkison, Wellborn, Houston, Perry & Adkison, Henderson, for appellant.

Donald R. Ross, Dist. Atty., Henderson, for appellee.

SUMMERS, Chief Justice.

This is an appeal from a conviction of the offense of attempted murder after a plea of not guilty. Punishment assessed by the jury was three and one-half years confinement in the Texas Department of Corrections.

We affirm.

Appellant asserts in his first ground of error that the trial court erred by refusing to require the State to produce a copy of the offense report of the Henderson Police Department, after an investigating officer testified and a request for such document was made. Appellant claims that he was entitled to a copy of the offense report under either of three alternatives: the "Gaskin Rule," the "use before the jury" rule, or under due process grounds as provided by the Constitution.

The "Gaskin Rule" provides that where 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 (1962); Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977); Lewis v. State, 481 S.W.2d 804 (Tex.Cr.App.1972); 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. Mendoza, supra, 552 S.W.2d 1 at 447; Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (Concurring Opinion).

The courts in decisions subsequent to Gaskin have made the application of the rule dependent on certain conditions. For example the testifying witness must have personally made the statement. Artell v. State, 372 S.W.2d 944 (Tex.Cr.App.1963); also see Vaughn v. State, 634 S.W.2d 310 (Tex.Cr.App.1982); Kemner v. State, 589 S.W.2d 403 (Tex.Cr.App.1979); Mendoza v. State, supra 552 S.W.2d at 448. Additionally, the accused must make an effort to properly incorporate in the appellate record the statement or report he claimed he was deprived of. Mendoza v. State, supra at 448; Gilbreath v. State, 500 S.W.2d 527 (Tex.Cr.App.1973); Lewis v. State, supra; Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969).

The record in the instant case reveals that the first Gaskin requirement has not been satisfied. Although Officer Charvis testified he gave input and read the report made out by Officer Ritter just after it was written, it was not actually made by Officer Charvis. The second requirement was met by the offense report being sealed and made a part of the appellate record. Even if Officer Charvis's input can be argued to allow the officer's report to be considered his, thus making the "Gaskin Rule" applicable, such error, if any, is harmless. An examination of the offense report which was brought forward on appeal sealed, reveals that it is substantially consistent with Officer Charvis's testimony and almost all of the information in the statement was developed during the trial. Ogle v. State, 548 S.W.2d 360 (Tex.Cr.App.1975); Howard v. State, 505 S.W.2d 306, 309 (Tex.Cr.App.1974); Lewis v. State, supra; Rose v. State, supra.

Alternatively, appellant asserts that the "use before the jury" rule entitles him to access to the officer's report. Under this rule, a defendant is entitled to inspect, upon timely request, any document, any instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. The trial court's failure to permit or compel such inspection is reversible error, and a showing of harm resulting from the error is not required. Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.1963); also see Mendoza v. State, supra 552 S.W.2d at 448; White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972).

Like the "Gaskin Rule," this rule is not applicable unless certain conditions are met. First, the rule is applicable only through the State's use of the document or statement at trial. Mendoza v. State, supra; Haywood v. State, 507 S.W.2d 756 (Tex.Cr.App.1974). Second, there must be use of the instrument or statement before the jury in such a way that its contents become an issue. Kemner v. State, supra 589 S.W.2d 1 at 408; Mendoza, supra; Howard v. State, supra. The courts have held that there was no "use before the jury" where a State's witness failed to testify from a report, nor was any indication made to the jury that the document was being used as the basis for the examination. The record does not reflect that Officer Charvis was testifying from the report or that he used the Officer's report written by Ritter to refresh his memory or that the report was used before the jury for any other purpose so as to bring its contents into issue. In the instant case the testifying Officer did not have his attention directed to the document in question, nor was it exhibited or read aloud to the witnesses, nor was any reference made to indicate to the jury that such document was being used as the basis for the interrogation. Carraway v. State, 507 S.W.2d 761 (Tex.Cr.App.1974); White v. State, 478 S.W.2d 506, 513 (Tex.Cr.App.1972). Compare the analysis and result in Hoffpauir v. State, 596 S.W.2d 139 (Tex.Cr.App.1980). Accordingly, we hold that the "use before the jury" rule did not apply.

Finally, appellant argues that the failure of the court to provide the officer's report constituted a denial of due process, relying on the "Brady Rule" for this contention. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962). The United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) held that the standard to apply to determine if a Brady request has been properly complied with is "materiality." The court further held that there is no duty to provide defense counsel with everything known to the prosecutor and that no constitutional violation results unless defendant has been denied a fair trial. We see no such violation in the instant case. Appellant's first ground of error is overruled.

Appellant in his second ground of error contends that the trial court erred in allowing Calvin Smith to testify, since the witness was incompetent to testify under Article 38.06 of the Texas Code of Criminal Procedure. ¹ It is well settled that the ruling of a trial court on the issue of competency will not be disturbed absent a showing of abuse of discretion. Watson v. State, 596 S.W.2d 867, 871 (Tex.Cr.App.1980); Martini v. State, 629 S.W.2d 253 (Tex.App.--Corpus Christi 1982, no P.D.R.). A reviewing court must examine the entire record to determine whether an abuse of discretion has taken place. Martini, supra; Villarreal v. State, 576 S.W.2d 51, 57 (Tex.Cr.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979). The record reflects that the trial court conducted a brief examination of the twelve year old child and such reveals no abuse of discretion in the trial court's determination. Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978). Further, the minor's testimony is consistent with the events about which he was questioned and the testimony of other witnesses. Having so found, appellant's second ground of error is overruled.

In appellant's third ground of error, he contends that the trial court erred in allowing the policeman, Charvis, to testify as to oral statements of the accused made while the accused was under arrest. Appellant argues that a custodial arrest was made and that the investigation had focused on the defendant when defendant made the oral statement. Officer Clyde Charvis testified that on September 11, 1980, he and his partner were dispatched by radio to 513 Robertson Blvd. in Henderson. He testified that the only information that was available to them when they arrived at that location was that there had been an argument between two men and one of them had a gun. Charvis testified that he approached appellant at the scene to try to ascertain the nature of the call, and before he could say anything or ask appellant anything and before any arrest, appellant remarked:

"Here is the gun, I shot him," and "I am tired of these mother fuckers fucking with me, and if I have to I will do it again."

Charvis further testified that in the course of his remarks appellant took a gun from behind his back and gave it to Officer Charvis.

Appellant's statements were clearly res gestae statements. Appellant complains that to allow their introduction is in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, the rights afforded by Miranda only apply to custodial interrogation. Davis v. State, 516 S.W.2d 157, 162 (Tex.Cr.App.1974). At the time appellant made his oral statements he was not in custody and no interrogation had been made. Appellant Epperson's oral statement falls within the ambit of Article 38.22, § 5, Vernon's Ann. C.C.P. In determining whether certain statements are admissible as res gestae, each case must be considered on its own merits. Patterson v. State, 458 S.W.2d 658 (Tex.Cr.App.1970); Lewis v. State, 630 S.W.2d 285, 287 (Tex.App.--Houston [14th Dist.] 1981, no P.D.R.). The Court of Criminal Appeals has given a broad interpretation as to what constitutes a res gestae statement. The record reflects that appellant's voluntary statements were made without any interrogation and the statement was properly admitted. Miles v. State, 488 S.W.2d 790 (Tex.Cr.App.1973); Kelley v. State...