rules for admission under former Article 3731a are same for proof of prior convictions under Article 37.07, § 3, supra, and enhancement allegations
How later courts described this case
- rules for admission under former Article 3731a are same for proof of prior convictions under Article 37.07, § 3, supra, and enhancement allegations
- On appellant’s motion for rehearing
- On motion for rehearing
Written by the judges who cited it.
The opinion
DISSENTING OPINION
MORRISON, Judge.
This is what occurred in the case at bar.
At the time of the trial the State had in its possession a scientific report and expert testimony as to two separate comparisons of hair. The first portion of the report related to the similarity of two sets of dog hair. The results of the comparisons were consistent with guilt and were used to secure appellant’s conviction.
The second portion related to the dissimilarity of human hair. This was inconsistent with appellant’s guilt. The report was prepared by a scientific expert witness called by the State at appellant’s trial.
Of course, the State was not required to offer into evidence as part of their case any evidence which would weaken their case, but this does not mean that they were not bound to make the existence of such testimony known to the defendant, who was unaware of the existence of such a report and the availability of such expert testimony.
During the course of his examination of the scientific expert witness, the prosecutor conducted his examination of the witness so as to leave the impression in the minds of the jury that, in fact, no human hair report or testimony existed. The dog hair was received by the chemist on a certain day, and the human hair was received a short while thereafter. One report covered both sets of hair. When the prosecutor was examining the expert, he specified the date on which the dog hair was received and limited his questions and requested answers to only those items received on that date. He then asked the witness if a search for human hair was made of all items received on that date. The expert limited his answer to only the items received on that date, and testified that he had made such a search and that none was found. No mention of the human hair portion of the report was made at appellant’s original trial, and appellant *115 was deprived of the knowedge of this testimony in the possession of the State which was inconsistent with his guilt.
Because, as I see it, a Federally protected Constitutional right is presented in this case, I must respectfully dissent to this af-firmance. As postulated by this case, the right is as follows. Under the Fourteenth Amendment, a prosecutor is under the duty to disclose to an accused, without the necessity of a request, exculpatory evidence which he or the police have in their possession, if such evidence is of a type or from a source which would make it persuasive to a fair minded jury. When he fails to do so, a Constitutionally protected right has been violated, and reversal should follow. Judge Marshall in United States ex rel. Meers v. Wilkins, 2 Cir., 326 F.2d 135 , traced this Constitutional duty from the time of its establishment up to the time of his opinion. I need elaborate no further. 1
My Brother ONION joins me in this dissent.
. The following cases have held that due process is violated where the prosecutor has withheld evidence favorable to the accused. Ashley v. State of Texas, 5 Cir., 319 F.2d 80 ; Barbee v. Warden, 4 Cir., 331 F.2d 842 ; United States v. Poole, 7 Cir., 379 F.2d 645 ; Hamric v. Bailey, D.C., 274 F.Supp. 240 ; and, of course, United States ex rel. Meers v. Wilkins, 2 Cir., 326 F.2d 135 , and cases cited therein. See also 42 Notre Dame Lawyer 264, and 42 N.Y.U.Law Review 764.