Rose v. State

• Decision Date: 28 February 1968
• Docket Number: No. 40991,40991
• Parties: Bertram ROSE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 609

427 S.W.2d 609

Bertram ROSE, Appellant, v. The STATE of Texas, Appellee.

No. 40991.

Court of Criminal Appeals of Texas.

Feb. 28, 1968.

Rehearing Denied May 29, 1968.

Weldon Holcomb, Rex Kirby, Tyler, for appellant.

Hunter B. Brush, Milton Greer Mell, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is felony theft; the punishment, five years.

Appellant's first and principal ground of error is that the court denied his request to inspect a document in the possession of a witness. During the testimony of Bryan Thompson, director of personnel at the plant from which the property was stolen, appellant's counsel stated, 'We object to the reading of notes, etc. while he is testifying.' On the next page, counsel again stated, 'Your Honor, we object to the reading of this material unless we have a chance to look at them, etc., and see what they are.' The Court replied, 'I don't know what you are talking about.' Appellant's counsel replied, 'I don't either, Your Honor.' The Court then directed this question at the witness, 'Are you referring to notes to refresh your memory?', and the witness replied, 'This is a sequence of events to refresh my memory.'

This answer is as much as appellant was able to prove to establish his contention because the Court agreed that if the witness Used it to testify from, appellant's counsel would be entitled to see it, and the State agreed that if it became necessary to refer to any portion of the six page instrument, such portion would be made available.

At this juncture the Court asked to see the instrument and State's counsel asked Thompson if he had read or used the legal size six page photostatic copy in any manner since he took the witness stand, and the witness replied that he had not. The jury then returned to the courtroom and certain testimony was developed without mentioning the instrument. The jury was again retired, and appellant's counsel again sought permission to inspect the instrument on the grounds this time that State's counsel was using a copy of the same instrument in the possession of the witness Thompson in the course of his interrogation of the witness.

At this juncture State's counsel agreed to allow appellant's counsel to inspect the notes from which he was asking questions, but objected to his examining the work product of the District Attorney's office, and explained to the court that the instrument in question contained no signed statements of any witness, but was his re sume of all the facts he intended to prove in the proper sequence which he had learned from talking to the witnesses. How the copy of the same got into Thompson's possession is not shown, but we are here concerned only with the question of whether Thompson used the same while on the witness stand, or whether it was 'exhibited or read from or used to question the witness in the jury's presence.' Sewell v. State, Tex.Cr.App., 367 S.W.2d 349, 351.

In this connection we observe that no question was propounded to the witness in which the instrument was mentioned other than to solve the issue here before us.

But there is more. After each counsel had made his position clear to the court, the court then addressed this question to the witness, 'and I ask you again, Mr. Thompson, if you had at any time since you have been on this witness stand, referred to those pages to refresh your memory or have you used them in any way?' The witness stated that he had not, and explained, 'I merely brought them up here in case somebody asked me a question I could not answer as to date or time, to refresh my memory as to that date or time.'

The trial court ordered the instrument sealed in an envelope and sent to this Court. An examination thereof shows it to be just what the State's counsel said it was. It is a narrative account of the chronological development of the case then being tried. It attributes no statement to any witness except the accused and was truly the work product of the District Attorney's office, signed by no one. I join my Brother Onion in condemning the practice of a prosecutor permitting his witnesses to refresh their memories from his personally prepared narrative account of the case, but the Court has concluded that in this case reversible error has not been shown.

Clearly the italicized quote from Sewell v. State, supra, shown above must necessarily mean that the prosecution must let the witness know that he is referring to the instrument when questioning him.

His second ground of error is akin to the first in that he complains that he was not permitted to examine the copy in the possession of the prosecutor. As shown above, the prosecutor offered to show him the yellow sheet he was using to question the witness, but declined to exhibit the work product of his office.

His third ground of error, not supported by authority, is that the indictment charged him with two separate and distinct felonies. Such is not the case. The indictment in the first paragraph charged the appellant with embezzlement and the second count related the same transaction, but denounced the same as theft. An indictment may contain as many counts charging the same transaction as is thought necessary to meet the emergencies under the testimony, that is, to meet the proof as it transpires and prevent a variance. Article 21.24, Vernon's Ann.C.C.P.; Vannerson v. State, Tex.Cr.App., 408 S.W.2d 228.

Appellant's fourth ground of error, not supported by authority, is that the evidence shows embezzlement but not theft, which was the offense submitted to the jury in the court's charge. The record is clear that during the afternoon preceding the day when the property was taken, appellant had been relieved of his position of foreman in charge of the compressor repair department, and Doyle Yancey had taken his place, so when the property was taken, the same was not in his custody so as to make the taking embezzlement instead of theft. See Grice v. State, 88 Tex.Cr.R. 106, 225 S.W. 172; Watkins v. State, 84 Tex.Cr.R. 412, 207 S.W. 926; and Fellers v. State, 138 Tex.Cr.R. 307, 136 S.W.2d 217.

Finding no reversible error, the judgment is affirmed.

DICE, Judge (concurring).

I fully concur in the result reached in this case, but wish to state that this court should not condemn the prosecutor for the manner in which he prepared the case for trial. To the contrary, he should be commended.

This court should not discourage attorneys, either for the state or the defendant, in the efficient preparation of their cases for trial.

WOODLEY, P.J., and BELCHER, J., join in this concurrence.

ONION, Judge (concurring).

I reluctantly concur in the result reached for I cannot conclude that appellant has brought himself within either one of the two rules set forth and distinguished in Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.

While the witness Thompson acknowledged that he had refreshed his memory from a copy of the instrument in question at his office on the morning of the trial, and that he brought such copy to court with him, the record does not support appellant's claim that it was used or exhibited before the jury by the witness, or that the prosecutor made use of the original or another copy of such instrument in his interrogation of the witness before the jury. ¹

The 'use before the jury' rule has always been applied literally, and before the rule comes into play the writing or object must be actually used in the jury's presence. ²

Under such rule, however, reversal will result without any showing of injury upon the defendant's timely request for inspection of Any document, instrument or statement, which has been used before the jury by which its content becomes an issue. It is clear that if used before the jury, the...