White v. State

• Decision Date: 27 June 1973
• Docket Number: No. 46345,46345
• Citation: 496 S.W.2d 642
• Parties: Norma Jean WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 642

496 S.W.2d 642

Norma Jean WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 46345.

Court of Criminal Appeals of Texas.

June 27, 1973.

Rehearing Denied July 17, 1973.

John R. McFall, Lubbock, for appellant.

Bill Neal, Dist. Atty., Vernon, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for assault with intent to commit murder with malice aforethought. The punishment was assessed at 15 years by the court following a verdict of guilty.

The sufficiency of the evidence is not challenged. Suffice it to say, the record reflects that the complaining witness, Charles Kenneth Melton, was driving to his place of employment in Acme, Texas, on the night of July 6, 1971 about 10:40 or 10:45 p.m. when a white 1961 or 1962 Chevrolet automobile overtook him and the woman driver yelled that she was the woman who had called him from Memphis about 'riding' some horses and that she needed to talk to him. Melton stopped and the woman, whom he identified as the appellant, approached him and engaged him in conversation. It was a bright moonlight night and the appellant came within four feet of Melton.

Six or eight weeks earlier Melton had received a long distance call from a woman identifying herself as a Mrs. Taylor who wanted him to break some horses.

After identifying herself as the woman who made that call, the appellant asked Melton if he could help her with her horses. He again declined. At this time she attempted to spray something in his face and then ran to the rear of the car yelling, 'Get him! Get him! Get him!' Just at this time the co-defendant Lonnie D. Garrison arose from the floorboard of the Chevrolet and got out armed with a shotgun or rifle. Melton knew Garrison who had previously had an affair with Melton's wife. He pleaded, 'Lonnie D., don't you shoot me,' and Garrison replied, 'I'm going to.' Melton then jumped out of his pickup truck and ran toward a nearby railroad track. Apparently, a .45 caliber slug hit him in the kneecap and knocked him down. ¹ Seeing approaching lights, he tried to drag himself back to the highway when Garrison shot him in the shoulder with a shotgun. The couple then fled in the Chevrolet. Passing motorists found Melton and rushed him to the hospital.

Appellant and Garrison were arrested while they were together in Garrison's pickup on a dirt road about 14 miles south of Childress at approximately 1 a.m. the next morning.

Testifying in her own behalf the appellant admitted being in Childress on the night in question but denied any involvement in the alleged crime. She related that she came to Childress to see Garrison about a loan so that she might apply for a license to serve mixed drinks at the two lounges she operated in Amarillo; that, after contacting Garrison, he met her at the Sage Brush Cafe about 10:30 p.m. and that they left in his pickup to go to his farm so he could fix a flat tire on a tractor and to talk about the loan. She left her 1961 white Chevrolet at the cafe in Childress. She denied she ever owned or possessed a .45 caliber pistol or had ever telephoned Melton at any time. Several prior convictions were used in an effort to impeach her.

In rebuttal the State called Charlotte Moore who related she lived with the appellant in Amarillo for some four months prior to the shooting and that she had seen a .45 caliber pistol in appellant's apartment and that a tear gas pencil she owned had been lost or misplaced while she was living in appellant's apartment.

The area manager of the Southwestern Bell Telephone Company produced company records that reflected a person to person telephone call had been placed from the appellant's apartment phone number in Amarillo to the complaining witness' number in Childress on May 8, 1971.

Initially, appellant complains that the trial court erred in overruling her motion for continuance filed on the day her trial commenced (January 17, 1972). The motion was based principally upon the absence of two allegedly material witnesses and the fact that appellant's counsel had been retained on January 9, 1972.

The offense was alleged to have occurred 'on or about the 6th day of July, A.D., 1971.' The indictment was presented and filed on September 23, 1971.

The hearing on the motion for continuance revealed that the appellant and her co-defendant Garrison originally employed a Childress attorney, Richard Bird. He had obtained appellant's release on bail after her arrest not long after the shooting. On November 23, 1971, he notified the appellant and her co-defendant that their trial was set for January 17, 1972. Later, apparently several days before Christmas, 1971, the appellant and Garrison employed attorney F. B. Godinez of Lubbock. Fearing a possible conflict of interest, attorney Godinez contacted attorney John McFall, also of Lubbock, about the possibility of his representation of the appellant. A report of an investigator for Godinez was made available to McFall as early as December 24, 1971. McFall began conferring with Godinez about the case on January 4, 1972 and he was 'formally retained' by the appellant on January 9, 1972.

An accused in a criminal case may not use his constitutional right to counsel so as to manipulate the commencement of his trial to suit his convenience and pleasure.

Further, it is noted that on the date of the trial the court granted motions for severance and offered the appellant and her co-defendant the choice of who would go to trial first and the appellant elected to proceed to trial prior to her co-defendant.

As to the two alleged material witnesses, Jimmy Thomas and Yolanda Uglius Campbell, it is shown that the State located Thomas in jail in Hollis, Oklahoma, and found the witness Campbell in Fort Worth. Both were returned to Hardeman County and testified for the defense.

We find no error in the trial court's action in overruling the motion for continuance.

Next appellant complains that the court erred in refusing to let her have the offense reports prepared by Texas Ranger Hickman for the purposes of impeachment and cross-examination after he had testified.

Reliance is had upon the 'Gaskin Rule.' See Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962).

The request for the offense reports came during the cross-examination of the complaining witness but the appellant did indicate he intended to recall Ranger Hickman for further cross-examination if permitted the offense reports.

After examining the offense reports in camera, the trial court refused to permit appellant's access to the same, but, at appellant's request, ordered the same sealed and forwarded to this court with the appellate record.

'. . . Where a witness for the State has made a report or has given a statement prior to testifying, the defendant, after a timely and specific motion, is entitled to inspect and use such prior and available report or statement for cross examination and impeachment purposes, and this right obtains even though the witness has not used the instrument to refresh his memory.' Zanders v. State, 480 S.W.2d 708, 710 (Tex.Cr.App.1972).

See also Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (Tex.Cr.App.1962).

While it is true that Article 39.14, Vernon's Ann.C.C.P., excepts the work product of the prosecution from pre-trial discovery once the 'Gaskin Rule' comes into play, the statute no longer controls.

If an accused brings himself within the 'Gaskin Rule,' It is error to fail to require production of a prior and available report or statement of the witness. The error may be harmless. The harmfulness of the error is dependent upon whether an examination of the report or statement by this court on appeal demonstrates that the accused should have been allowed the statement for the purposes of cross-examination and possible impeachment. Error per se will result if the accused is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any. Zanders v. State, supra; Rose v. State, 427 S.W.2d 609, 619 (Tex.Cr.App.1968) (concurring opinion).

It is clear that the trial court erred in refusing to permit inspection and use of the offense reports of Ranger Hickman for the purposes of cross-examination and impeachment upon timely request. However, an examination of the sealed reports contained in this record fail to show just how this appellant was harmed by the court's erroneous denial of his request. The reports were entirely consistent with the Ranger's testimony and we find that nearly all of the information contained in the reports was developed during the trial of the cause. We find no reversible error. ²

In two grounds of error the appellant complains that the court refused her the use of the reports of Ranger Hickman for the cross-examination of the complaining witness Melton and rebuttal witness Moore.

Artell v. State, 372 S.W.2d 944 (Tex.Cr.App.1963), limited the so-called 'Gaskin Rule' to a previous report or statement personally made by the witness testifying for the State. Such a report or statement is not to be made available to cross-examine and attempt to impeach a witness who did not make the report or statement. Such limitation has been criticized where the report or statement has been used to refresh the memory of a non-maker witness prior to testifying. 16 Baylor L.Rev. 51, 60. Leal v. State, 442 S.W.2d 736, 739 (Tex.Cr.App.1969) (concurring opinion); Rose v. State, supra (concurring opinion). Cf. Dover v. State, 421 S.W.2d 110 (Tex.Cr.App.1967).

In the instant case the reports of Ranger Hickman were not shown to have been prepared by the witnesses Melton or Moore or reviewed by them prior to testifying.

No error is perceived.

In three grounds of error appellant contends the in-court identification of the appellant by Kenneth Melton was tainted by a suggestive display of...