Jenkins v. State

MALONEY, Judge,

dissenting.

Believing appellant’s seventeenth point of error was properly disposed of in the manner set forth on original submission, I dissent. 1

I.

In support of its third ground for rehearing, the State asserts that the Court on original submission “misstate[d] the standard evaluating whether a statement need be produced by a party by looking to whether the witness had control of or access to the statement. It is clear that the correct question in this case is whether the statement was in possession of the prosecution.”

While the State now claims that whether the prosecution has possession of the statement is the central question in this case, it neither raised this issue on original submission nor did we directly address it. On original submission the State itself interpreted the Rule as referring to statements in the possession of the witness. This is evidenced by way in which the State summarized Rule 614 in its brief:

Rule 614 requires that the defense be provided statements of a witness that are in their possession and that relate to the subject matter concerning which the witness has testified.

In addition, the State asserted several arguments on original submission as to why Bitter’s reports were not subject to Rule 614, none of which suggested that statements subject to Rule 614 can only be in the possession of the prosecution. 2 Nevertheless, the Court has decided to address the State’s belated argument.

The State argues that its newly asserted interpretation, requiring possession by the prosecution, is supported by the language and interpretation of the Jencks Act. Rule of Criminal Evidence 614(a) provides:

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

*823 Tex.R.Crim.Evid. 614(a) (emphasis added). The Jencks Act provides:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified ...

18 U.S.C. § 3500 (b) (emphasis added). The majority addresses the State’s contention by holding that the “plain language of Rule 614(a), as it applies here, speaks only to requiring a prosecutor to produce witness statements that are in the prosecutor’s possession.” Majority opinion on rehearing at 819. The majority neglects to specify exactly what language contained in Rule 614 so plainly requires possession by the prosecutor alone. As emphasized above, Rule 614 requires production of “any statement of the witness that is in their possession.” I do not see as plainly as the majority the requirement in this language that the statements be in the possession of the prosecutor. It might very well be that the word “their” refers back to any or all of the previously named persons — “the attorney for the state or the defendant and his attorney” or “the witness[.]” Under no “plain language” reading of the rule, however, can it be said to refer back only to “the attorney for the state[,]” as the majority holds.

The majority also argues that its “plain language” interpretation is bolstered by those federal cases that require possession to be in the prosecutorial arm of the government. This reasoning is flawed in light of the conspicuous differences between the language of the Jencks Act and Rule 614 in this respect. All of the federal cases cited by the State in support of this proposition interpret the language of the Jencks Act. The Jencks Act expressly requires that the statement be “in the possession of the United States.” In contrast, Rule 614 refers to a statement “of the witness that is in their possession [.]” Were Rule 614 intended to substantively mirror the Jencks Act in this regard, it would refer to a statement of the witness “in the possession of the State.” 3

The holding of the majority, requiring that the statement be in the possession of the prosecutor, invites the prosecution to discourage witnesses from giving them their statements in an effort to circumvent the production requirements of Rule 614. Such an interpretation effectively emasculates the Rule. Accordingly, I would overrule the State’s third ground for rehearing and interpret Rule 614 as the Court did on original submission, requiring production of the statements at issue in this case, in the possession of the witness, Bitter. 4

The Court held on original submission that:

[W]e think it reasonable that when a defendant requests the production of a statement under Rule 614, the State bears the burden, as the party contesting production, to show why the statement should not or cannot be produced. See United States v. Augenblick, 393 U.S. 348, 355-56 , 89 S.Ct. 528, 533-34 , 21 L.Ed.2d 537 (1969) (government properly bears burden of explaining why statements under Jencks Act could not be produced); Moore v. United States, 353 A.2d 16, 19 (D.C.1974) (under Jencks Act burden of explaining why material can’t be produced is on government).

*824 Jenkins v. State, 912 S.W.2d 793, 823 (Tex. Crim.App.1993).

The State complains on rehearing that it is the defendant’s burden to establish that the statement is in possession of the government. The State further contends that only when the defendant establishes that the statement is in the possession of the government does the burden fall on the government to show why the statement cannot be produced. The majority’s opinion on rehearing does not address this complaint or, under its new holding, indicate who bears the burden of showing that the statement is or is not in the possession of the government and/or that it can or cannot be produced.

"While the Court on original submission did not expressly address who should bear the burden of showing that the statement is possession of the witness, it held that the party contesting production bears the burden of showing why the statement cannot be produced. It is not unreasonable that the party contesting production also shoulder the burden of showing that the statement is not in the possession of its own witness. It makes little sense for the party seeking production from an adverse witness to bear the burden establishing whether or not that witness has the statement.

II.

Although the State’s fourth ground for rehearing was also granted, the majority’s sustaining of the third ground apparently eliminated any necessity of addressing that ground. 5 Because I would overrule the third ground for rehearing, it is appropriate that I also address the State’s fourth ground.

The State has obtained copies of the reports at issue, filed them with the trial court and included them with its Motion for Rehearing, along with a Motion to Abate. The State argues that if its other grounds for rehearing are overruled, it is at least entitled to an abatement of the case so that the trial court can include the documents in the record and determine whether their exclusion was prejudicial. The State contends that some federal courts have done this in the context of the Jencks Act and that this Court has acted similarly in other contexts.

I would first point out that at trial appellant urged production of the documents for purposes of appeal, but that request was denied. Now the State has obtained the reports and urges that they be made a part of the record. While admittedly, this Court permits abatement in certain instances (bill of exceptions, Batson, competency hearing), abatement has not been used in the context of the Gaskin rule and I do not think it appropriate here. See, e.g., Zanders v. State, 480 S.W.2d 708, 710-11 (Tex.Crim.App.1972), cert. denied, 421 U.S. 951 , 95 S.Ct. 1685 , 44 L.Ed.2d 106 (1975) (where defendant denied opportunity to make statements under Gas-kin rule available for appellate record so harm can be determined, harm is presumed); White v. State, 496 S.W.2d 642, 646 (Tex. Crim.App.1973). To allow abatement where the trial court has failed to compel production of documents under Rule 614 will eliminate any hope of enforcing the rule in the future. Parties -will refuse production or trial courts will not compel production in favor of dealing with a harmless error analysis at a later date, assuming the error was properly preserved.

For these reasons, I would overrule the State’s grounds for rehearing and adhere to the Court’s opinion on original submission. 6

BAIRD, J., joins.

. While appellant grouped points of error seventeen, eighteen and nineteen together on original submission, the Court disposed of the case based upon Rule 614 alone, which was asserted in point of error seventeen. The grounds granted on rehearing address only point of error seventeen.

The Court granted grounds three and four of the State’s Motion for Rehearing:

3. The Reports Larry Bitter made at TDC Regarding Investigations Entirely Unrelated to this Case were not in the Prosecution’s Possession])]

4. Even if this Court Were to Find a Violation under Rule 614, this Case Should be Remanded to the Trial Court To Include Copies of the Reports in the Record so that the Trial Court can Determine Prejudice, if Any[.]

. The State argued on original submission that appellant's request exceeded the Rule’s requirement that the statements pertain to the "subject matter concerning which the witness has testified.” In this regard, the State argued

this rule was not intended to require production of every report a witness had ever seen or made regarding a topic on which he was testifying. More specifically, Rule 614 cannot be interpreted to require Bitter to produce every report he had ever seen or made regarding drug activity at T.D.C.J.I.D.

The State also argued that production would be "extremely onerous” and "herculean."

The State further stated in a single sentence that the reports were not subject to production because

as appellant himself acknowledges, the T.D.C.J.I.D. reports were not in Bitter’s possession nor the State’s, and so could not be compelled under Rule 614.

While it is difficult to determine exactly what point the State was making in this single sentence, it seems that the State was contending that because the reports were located at TDC, they were not in the personal possession of the witness or the State. This is not the same argument asserted by the State in its motion for rehearing.

. On original submission, we looked to federal caselaw in interpreting language contained in Rule 614 that was virtually identical to the language contained in the Jencks Act. In this regard, we interpreted the portion of Rule 614(a) that refers to any statement "that relates to the subject matter concerning which the witness has testified." The Jencks Act refers to any statement "which relates to the subject matter as to which the witness has testified.”

. The majority acknowledges the granting of grounds three and four, sustains ground three, and never addresses ground four.

. Prior to trial, appellant filed a motion entitled Defendant's Request that State’s Witnesses Bring With Them Any and All Reports that the [sic] Made or Utilized in Forming the Basis of Their Testimony at the Punishment Phase of This Trial. The Motion requested, in part, that the trial court order the State to

[(Instruct any and all of their witnesses to bring to Court with them at the punishment *825 phase of this case ALL REPORTS, RECORDS, WRITINGS and RECORDINGS of any kind that they made in connection with the subject matter of their testimony at the trial of the defendant’s punishment in this case.

The Motion was granted on the same day it was filed. In addition to his other complaints, appellant complains the trial court’s ruling was con-traiy to this motion. On original submission, the Court noted that since it was disposing of the case on the basis of Rule 614, it need not address appellant's contentions with respect to his motion. Since the majority now overrules appellant’s contentions with respect to Rule 614 and his constitutional claims it should address appellant's specific contentions respecting his motion.