Guilder v. State

• Decision Date: 25 May 1990
• Docket Number: No. 05-88-00632-CR,05-88-00632-CR
• Citation: 794 S.W.2d 765
• Parties: Donald Frank GUILDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 765

794 S.W.2d 765

Donald Frank GUILDER, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-00632-CR.

Court of Appeals of Texas,

Dallas.

May 25, 1990.

Rehearing Denied July 20, 1990.

John H. Hagler, Dallas, for appellant.

Jeffrey Keck, Dallas, for appellee.

Before WHITHAM, LAGARDE and KINKEADE, JJ.

OPINION

WHITHAM, Justice.

Opinion Following Abatement of Appeal for Batson Hearing.

Appellant appeals his conviction for unlawful possession of a controlled substance. On original submission, in his second point of error, appellant contended that the trial court erred in refusing to allow the defense attorney to cross-examine the prosecutor regarding his use of peremptory challenges. We agreed, abated his appeal, and remanded the cause to the trial court for a Batson ¹ hearing pursuant to this Court's decision in Williams v. State, 767 S.W.2d 872 (Tex.App.--Dallas 1989, pet. ref'd). The trial court conducted a hearing, allowing defense counsel to cross-examine the prosecutor regarding his use of peremptory challenges. At the conclusion of the Batson- Williams hearing, the trial judge found "that the State did not exercise its peremptory challenges in a racially discriminatory manner." We now must address appellant's remaining points of error--including his claims of Batson error.

In his first point of error, as well as his first supplemental point of error, appellant complains of Batson errors at trial and of errors occurring at the Batson- Williams hearing. After reviewing the record, we note that the voir dire proceedings are not before us--there is no statement of facts of the voir dire proceedings within the record on appeal. ² This Court has held that a Batson complaint cannot be reviewed in the absence of a transcription of the complete voir dire examination. Reed v. State, 751 S.W.2d 607, 610 (Tex.App.--Dallas 1988, no pet.). "The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal." TEX.R.APP.P. 50(d). Having failed to do so, appellant has waived any error. We overrule appellant's first point of error and appellant's first supplemental point of error.

In his second supplemental point of error, appellant contends that the trial court erred in refusing to allow the defense attorney to examine the prosecutor's notes during the examination of the prosecutor. We disagree. During the Batson- Williams hearing, the prosecutor stated that he had prepared some personal notes regarding the jury selection. Defense counsel then requested that he be allowed to examine such notes during the cross-examination of the prosecutor. To such request, the trial court responded as follows:

You may see them with the exception of [the prosecutor's] personal notes. I will not allow you to see those but otherwise, yes.

The State argues that the prosecutor's notes constitute work product and are therefore privileged. We agree. In the case of State v. Antwine, 743 S.W.2d 51, 67 (Mo.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), which was quoted at length by our Court of Criminal Appeals in the leading Batson case in Texas, Keeton v. State, 749 S.W.2d 861 (Tex.Crim.App.1988), the Missouri Supreme Court held that a prosecutor's trial notes taken during voir dire were work product and, therefore, privileged--that "[t]he impressions formed by a prosecuting attorney during voir dire constitute his opinions." Antwine, 743 S.W.2d at 67; accord People v. Mack, 128 Ill.2d 231, 131 Ill.Dec. 551, 559, 538 N.E.2d 1107, 1115 (1989); Foster v. State, 258 Ga. 736, 374 S.E.2d 188, 192 (1988). We agree with the Missouri Supreme Court. Further, we reason that any notes prepared by the prosecutor in preparation for a Batson (or Williams ) hearing also constitute his work product. Article 39.14 of the Texas Code of Criminal Procedure specifically excludes from discovery "the work product of counsel in the case and their investigators and their notes or report." An attorney's files and papers are work product and are therefore privileged. Brem v. State, 571 S.W.2d 314, 322 (Tex.Crim.App. [Panel Op.] 1978). Batson does not create an exception to the work product privilege. See Antwine, 743 S.W.2d at 67. Thus, the determination of what materials are discoverable by the defense being committed to the discretion of the trial court, the trial court's ruling will not be disturbed in the absence of an abuse of discretion. See Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980).

In his brief, appellant contends that under rule 614 of the Texas Rules of Criminal Evidence the prosecutor's notes were subject to his examination as statements that "relate[ ] to the subject matter concerning which the witness has testified." Under rule 614(f) a "statement" of a witness is defined as:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by him;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

TEX.R.CRIM.EVID. 614(f). The prosecutor's notes, in this case, by their very nature preclude applicability of paragraphs (2) and (3) above. Thus, unless the prosecutor's notes constitute a statement under paragraph (1) above, rule 614 is inapplicable. We conclude that since appellant does not argue that the notes were signed or otherwise adopted or approved by the prosecutor and there is no evidence showing such, the notes do not constitute a "statement" within the meaning of rule 614. Therefore, we conclude that it was not error for the trial court to refuse to allow the defense attorney to examine the prosecutor's notes during his cross-examination of the prosecutor. We overrule appellant's second supplemental point of error.

In his third supplemental point of error, appellant contends that he was denied effective assistance of counsel due to the delay in conducting the Batson hearing. Appellant contends, under this point, that he is entitled to a reversal of his conviction because "the defense attorney ... did not have independent recollection of the entire voir dire proceedings and was, therefore, unable to proceed effectively." Appellant also urges that counsel was "unable to specifically recall his voir dire of certain jurors." We conclude appellant's point to be utterly without merit. The record of the Batson- Williams hearing reveals that appellant had a copy of the statement of facts from voir dire proceedings. ³ Indeed, the record shows that appellant even introduced said statement of facts as an exhibit and cross-examined the prosecutor extensively on its contents. Thus, the assertion that defense counsel's memory of the voir dire proceedings was faulty fails in light of the fact that counsel's memory, aided by the statement of facts of the voir dire proceedings, was refreshed. Further, while appellant asserts that he was denied effective assistance of counsel (counsel's failing memory evidently being the error denying appellant effective assistance), appellant fails to show that the deficient performance of counsel prejudiced his defense. Both showings must be made for appellant to prevail. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

In the present case, as in many which reach this Court, appellant's brief fails to address the issue of prejudice to the defense. Here, as in many cases, we read of defense counsel's deficiencies, but we are told nothing that would lead us to a conclusion that these deficiencies were prejudicial. Therefore, we begin our prejudice inquiry by concluding that the prejudice issue is a "non-issue" in the present case. We reason that, if the prejudice question was of any actual moment in the present case, appellant's brief would cite to the record and from the matters referenced construct an argument on which a conclusion of prejudice could be drawn. Appellant's brief does not. Importantly, appellant fails to direct us to evidence or circumstances showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different together with a reasoned argument leading to the conclusion that this reasonable probability is a probability sufficient to undermine the confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. If we are to reach a conclusion of prejudice, then we must have reasoned argument. This Court should not be expected to leaf through a voluminous record hoping to find prejudice and then speculate whether it is that part of the record to which appellant must refer. See Cook v. State, 611 S.W.2d 83, 87 (Tex.Crim.App. [Panel Op.] 1981). Indeed, we decline to do so. In the present case, appellant stands silent on evidence or circumstances showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different together with a reasoned argument leading to the conclusion that this reasonable probability is a probability sufficient to undermine the confidence in the outcome. Consequently there is nothing presented for review. See Cook, 611 S.W.2d at 87. Thus, we conclude that appellant's position on appeal shows the prejudice question to be of no real issue in this case. We conclude, therefore, that appellant failed to show that any deficient performance of counsel prejudiced the defense. Therefore, the second prong of the Strickland inquiry is not met. In short, we hold that it is not our duty to discover where prejudice is buried. Instead, appellants must show...