Gaskin v. State

• Decision Date: 13 December 1961
• Docket Number: No. 33909,33909
• Citation: 172 Tex.Crim. 7,353 S.W.2d 467
• Parties: Flemin GASKIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 467

353 S.W.2d 467

172 Tex.Crim. 7

Flemin GASKIN, Appellant, v. The STATE of Texas, Appellee.

No. 33909.

Court of Criminal Appeals of Texas.

Dec. 13, 1961.

Rehearing Denied Jan. 31, 1962.

Clyde W. Woody, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State

MORRISON, Judge.

The offense is possession of marijuana; the punishment, two years.

In view of our disposition of this case, a recitation of the facts will not be necessary other than to state that bill of exception No. 1 recites the following facts: Each of the arresting officers testified that contemporaneously with the arrest they had prepared a complete report of the transaction in question. The arrest was shown to have occurred some two years prior to the trial. The officers testified that before coming to court they had read the report and were in fact testifying from their refreshed memory. After each of the officers had testified, appellant made a request upon the prosecutor to produce such report for the purpose of cross-examining the officers. The prosecutor admitted that he had such report in his possession, but the court [172 TEXCRIM 8] refused to order him to deliver the same to appellant's counsel for the purpose stated, to which appellant objected.

Thereafter, at the hearing on the motion for new trial, appellant again made demand upon the prosecution for production of said report for the purpose of perfecting his bill of exception, but, even though it was stipulated that the prosecutor had said report in his possession, the court declined to order him to produce the same.

In the recent case of Moreno v. State, Tex.Cr.App., 341 S.W.2d 455, 457, in explaining our prior holding in Wiley v. State, Tex.Cr.App., 332 S.W.2d 725, we said:

'Our holding was that such statements should have been made available for the record for the purpose of showing injury, if there was injury.'

For the error of the court in failing to permit appellant to perfect his bill so that he might show injury, if any occurred, the judgment is reversed and the cause remanded.

ON STATE'S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

We disclaim any intent to adopt the Jencks decision (Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103) or the so-called Jencks Act (18 U.S.C.A. Sec. 3500) as a rule of procedure in this state.

We are not here dealing with grand jury testimony, or with a confession of the defendant, but with a previous statement shown by the evidence to have been made by a witness who has testified for the state, which statement was available and inspection was requested for the purpose of cross-examination and possible use for impeachment purposes.

We agree with counsel for the state that under the decisions the defendant has an absolute right to have such a statement only where it has been used in some way before the jury by which its contents became an issue, such as used by the witness in testifying to refresh his memory, or exhibited or read from or used to question the witness in the jury's presence. Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920, 22 L.R.A.,N.S., 706; Palacio v. State, 164 Tex.Cr.R.[172 TEXCRIM 9] 460, 301 S.W.2d 166; Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464.

We agree that the facts here do not bring the case before us within said rule, the witness having testified that he refreshed his memory from it before he came to testify, and there being no evidence that he used it in testifying or that it was exhibited or used in the jury's presence.

From the decisions, it appears that the rule we have applied is in effect the same as that in the Federal Court stated and applied in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, long before the Jencks case was tried, namely, the trial judge...