Mendoza v. State, No. 53312

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ONION
• Citation: 552 S.W.2d 444
• Parties: Angel Olguin MENDOZA, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 53312
• Decision Date: 08 June 1977

Page 444

552 S.W.2d 444 Angel Olguin MENDOZA, Appellant,
v.
The STATE of Texas, Appellee. No. 53312. Court of Criminal Appeals of Texas. June 8, 1977.

Page 446

Jerry R. Prothro, Court appointed on appeal only, Midland, for appellant.

James A. Mashburn, Dist. Atty., and Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of sale of heroin. Article 725b, § 2(a), Vernon's Ann.P.C., 1925. Punishment of ten (10) years was assessed by the jury.

Briefly, the facts reflect that on January 26, 1973 Officer Jim Mull, an undercover agent for the Department of Public Safety, was working in the Midland-Odessa area attempting to purchase illegal drugs. Mull testified that approximately 5:30 p. m. he spoke with one Gilbert, who directed him to a residence where he met Catarino Ybarra, also known as Trevino. As Mull was talking to Ybarra on the street, appellant drove up and inquired whether Mull wanted to buy some heroin. Mull answered that he did. Appellant then said that Mull would have to accompany him to his residence to get the heroin. Mull and Ybarra took Mull's car and followed appellant's car to the residence. While Mull waited in the car, appellant and Ybarra entered the residence and returned shortly. Appellant then handed Mull five papers containing a brown substance. Mull in turn gave him $25.00. Briefly thereafter, while the three were still together, Ybarra asked for and received $5.00 from Mull for leading him to appellant's residence.

Appellant took the stand in his own defense and denied any participation in the sale. He claimed that he had been working until around 5:30 p. m. on the day of the alleged offense; that his employer had dropped him off after work at a grocery store approximately one mile from his residence; that he then walked home, where he spent the remainder of the evening.

Appellant's first ground of error asserts that the trial court erred in refusing to dismiss the jury panel and grant a new trial following the district attorney's opening remarks during voir dire examination. In particular, appellant complains of the following statements:

" . . . We represent that nebulous concept called law enforcement, the right of the people in a community to be free from crime. Whenever a crime is committed in this community against one citizen, in effect that's a crime against all of us as members of this county . . . And our staff, myself being one of the members, has the responsibility of seeing that the individuals who are guilty of criminal offenses are brought to trial, and hopefully brought to justice."

Immediately after these remarks were made, defense counsel moved that the entire

Page 447

panel be quashed. ¹ The motion was overruled; however, the court did admonish the district attorney to "be very careful what you say."

Appellant contends that the effect of the district attorney's remarks was to advise the jury that the appellant had to be guilty in order to be tried. We disagree.

The conduct of the voir dire examination, including the opening remarks of counsel must rest largely within the sound discretion of the trial court. Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975); Article 35.17, Vernon's Ann.C.C.P.; 35 Tex.Jur.2d, Jury, § 117. The question thus becomes whether the court abused its discretion in refusing to quash the entire venire.

Although these remarks, if isolated, may have been somewhat misleading, the record reveals that the district attorney went on to clarify the presumption of innocence and the State's burden of proof. In light of this clarification and the court's prompt admonishment, it is unlikely that potential jurors would have been led to believe that the district attorney had a basis for his opinion unknown to the venire, or that appellant was necessarily guilty because he was being tried.

Since the remarks were general in nature and made at a stage of the proceedings before the jury was impaneled and evidence was adduced, dismissal of the venire was not warranted. The complete context of the district attorney's opening remarks discloses no harmful error. Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); Chapman v. State, 503 S.W.2d 237 (Tex.Cr.App.1974); and cf. Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973); Clayton v. State, 502 S.W.2d 755 (Tex.Cr.App.1973). We conclude, therefore, that there was no abuse of discretion. Appellant's first ground of error is overruled.

Appellant complains in his second ground of error that the trial court erred in refusing to order the State to provide the appellant a copy of mail receipt records maintained by the Department of Public Safety laboratory in Austin.

At trial, D.P.S. chemist Harrison, a witness for the State, admitted on cross-examination that he had no independent recollection of receiving the heroin samples in the mail. Rather, the chemist testified that his only means of ascertaining whether he was present when the samples were received was by consulting records kept at the Austin laboratory specifying those persons present when the samples were submitted and placed in a vault. He did not bring these records with him when he testified, and apparently appellant made no attempt to subpoena them for use at trial.

Appellant claims that he was entitled to a copy of these receipt records under either of two alternative rationales: the "Gaskin Rule" or the "use before the jury" rule.

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); 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. However, harmfulness of the error is determined by considering whether the accused was thereby denied effective cross-examination or possible impeachment of the witness. Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (Concurring Opinion).

This court's decisions subsequent to Gaskin have made the application of the rule dependent on certain conditions. For example, the statement must have been

Page 448

made by the State's witness himself. Gilbreath v. State, 500 S.W.2d 527 (Tex.Cr.App.1973); Artell v. State, 372 S.W.2d 944 (Tex.Cr.App.1963). Additionally, the accused must make an effort to properly incorporate in the appellate record the statement or report he claimed he was deprived of. Gilbreath v. State, supra; Lewis v. State, supra; Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969).

The record in the instant case fails to reveal that either of these conditions was satisfied. Although it is questionable whether mail receipts are "statements" within the meaning of Gaskin, the receipts here were prepared by those persons present when the samples were received and opened. Thus, it does not appear that the "statement" was necessarily made by chemist Harrison who testified at trial. The record further fails to show that appellant took adequate steps to include the receipts in the appellate record. For these reasons, the "Gaskin Rule" does not apply.

Alternatively, appellant asserts that the "use before the jury" rule entitles him to access to the mail receipts. Under this rule, a defendant is entitled to inspect, upon timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.1963). 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. 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 comes into play only through the State's use of the document or statement at trial. Haywood v. State, 507...