Feehery v. State, 44765

Decision Date09 May 1972
Docket NumberNo. 44765,44765
Citation480 S.W.2d 649
PartiesLeo Thomas FEEHERY, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

John Cutler, Houston, for appellant.

D. Brooks Cofer, Jr., Dist. Atty., Bryan, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the sale of lysergic acid diethylamide (LSD). The jury assessed the punishment at two years.

The record reflects that Steve Hansen and Leo Thomas Feehery, the appellant, sold to Danny Williams, an undercover narcotics agent, five tablets of LSD in Hansen's room on the campus of Texas A & M University on May 14, 1970. Appellant and Hansen were separately indicted as principals in the sale.

The sufficiency of the evidence is not challenged.

Appellant's first four grounds of error complain of the trial court's refusal to grant his motion for discovery of (1) a copy of any photographs relating to the evidence; (2) a copy of or permission to view and chemical analysis made on the tablets; (3) a copy of the initial arrest report, and (4) a copy or inspection of any evidence in the prosecutor's possession favorable to the appellant. The trial court granted appellant's motion to discover any written statement or confession made by him and the names and addresses of witnesses to be used against him.

The Texas criminal discovery statute, Article 39.14, Vernon's Ann.C.C.P., provides, in part:

'Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. . . .'

The discovery statute is itself a limited one 1 and this Court has repeatedly held it necessary for the defendant making a motion for discovery to show the statutory requisites of good cause, materiality and possession by the State. See Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Smith v. State, Tex.Cr.App., 455 S.W.2d 748, and Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807.

There must be something in the record to show at least the existence of the items requested. Solomon v. State, Tex.Cr.App., 467 S.W.2d 422; Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728. Nothing in the record indicates the existence of any photographs.

Under Article 39.14, supra, a chemical analysis of the drugs is excepted as part of the work product of the prosecutor and his investigators. 2

A police officer's arrest report has been held to be excepted by the discovery statute even though that report is made prior to any investigation conducted by the prosecutor. See Hart v. State, Tex.Cr.App., 447 S.W.2d 944. Neither this report nor any of the other items was again requested at trial and none was requested to be sent before this Court for review.

Where the motion is too broad to be effective in that it includes items excepted by the statute and is nothing more than a fishing expedition this Court has upheld the trial court's refusal to grant the motion. See, g.e., Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Bell v. State, Tex.Cr.App., 442 S.W.2d 716; Smith v. State, Tex.Cr.App., 409 S.W.2d 408, cert. denied 389 U.S. 822, 88 S.Ct. 45, 19 L.Ed.2d 73. Appellant's request for 'any evidence in the prosecutor's possession favorable to the appellant' was properly denied because too broad to be effective.

No error is shown in the trial court's refusal to grant discovery of the items requested in appellant's motion.

Appellant's fifth and sixth grounds of error complain of the trial court's overruling his motion that Steve Hansen, who was separately indicted for the same offense arising out of the same transaction, be tried first. The appellant alleged that he would call Hansen as a witness but that, if called prior to his own trial, Hansen would refuse to testify by relying on the Fifth Amendment. Appellant further contended in his motion that Hansen made a prior statement to his attorney which would exculpate appellant but could not be introduced because of the attorney-client privilege.

Article 36.10, V.A.C.C.P., provides:

'If a severance is granted, the defendants may agree upon the order in which they...

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22 cases
  • Bates v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 10, 1979
    ...828 (Tex.Cr.App.); Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App.); Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.); Feehery v. State, 480 S.W.2d 649 (Tex.Cr.App.). That this Court's consideration of the "good cause" issue when confronting a request for independent examination of particular ......
  • Quinones v. State, 62117
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    ...18 (Tex.Cr.App.1974); and reports on the analysis of narcotics, e. g., Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973); Feehery v. State, 480 S.W.2d 649 (Tex.Cr.App.1972). It has also been extended to statements prepared by law enforcement officers after interviewing prospective witnesses. ......
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  • Sheldon v. State, 48166
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    • Texas Court of Criminal Appeals
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    ...reports have been held to be excepted from discovery under such statute. Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233; Feehery v. State, Tex.Cr.App., 480 S.W.2d 649; Hart v. State, Tex.Cr.App., 447 S.W.2d 944. It should be noted that Article 39.14, supra, provides for discovery of 'writte......
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