Ballew v. State

ROBERTS, Judge,

concurring.

I join Judge Tom Davis’s opinion that the State was entitled to inspect the memorandum from which the appellant’s witness had refreshed his recollection. Therefore, there is no need to consider the applicability of the Gaskin rule to defense witnesses.

For that reason, and because I think it involves a misreading of the case, I do not join Judge Tom Davis’s opinion when it says:

“The instant case does not involve the ‘Gaskin Rule’ because Dr. Baker was called as a witness by the appellant. See Bizzarri v. State, 492 S.W.2d 944 .”

Bizzarri should not be read to say that the Gaskin rule does not apply to a witness called by the defendant. Bizzarri did happen to involve a defendant’s witness, but the Gaskin rule was not inapplicable for that reason.

It was inapplicable because the defendant in Bizzarri was seeking Gaskin statements which had been made by his own witness. The Gaskin rule has to do with disclosure of a witness’s prior statement for cross-examination. There normally would be no need for the Gaskin statements of one’s own witness, for one normally may not cross-examine one’s own witness. That is all that I read Bizzarri to say. It does not limit the Gaskin rule to either party’s witnesses.

APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge,

concurring.

The Court Panel held trial court was not in error when it ordered Dr. David R. Bak *245 er, a practicing psychiatrist who had examined appellant, to produce and deliver to the prosecution all notes made by Dr. Baker during the course of his examination of appellant. The Panel reasoned that once Dr. Baker had been called to the witness stand by appellant, presented as an expert in his field and testified with respect to the sanity defense, “his reports were no longer privileged and were discoverable.” For that reason, said the Panel, “we need not consider these [other] contentions,” one of which is regarding what was called the “recollection refreshed” rule.

However, the Court En Banc has proceeded to address the “recollection refreshed” rule, and today the majority seems to have engrafted a part of “Present Recollection” and a part of “Past Recollection.” See Wood v. State, 511 S.W.2d 37, 43 (Tex.Cr.App.1974) and Ray, Texas Law of Evidence, § 541, 1 Texas Practice 512 et seq.

Lost somewhere, though, is the finding by the Court Panel that, with respect to the attorney-client privilege asserted by appellant, “once Dr. Baker took the stand his reports were no longer privileged and were discoverable.” 1 That the majority fails to address that finding is likely to become the focus of much debate when similar situations are again presented. Especially so now that the Legislature has created that which did not exist in the common law: privileged communications between physician and patient. Compare Ray, op. cit., § 431, 1 Texas Practice 415-416, with the Medical Practice Act, Article 4495b, § 508, and Article 5561h, Confidentiality of mental health information of individual, V.A.C.S. 2

I do not agree that reports of Dr. Baker were “discoverable” because he took the stand, under the circumstances presented here. But since the majority leaves that matter in limbo, there is not cause to dissent. Though the rule of “recollection refreshed” fashioned by the majority to apply to every witness who uses any qualified writing to refresh his memory for the purpose of testifying strikes me as a sudden break with years of decisions under the common law here and elsewhere, see Ray, op. cit., § 542, 1 Texas Practice 513 et seq., it is not all that radical. 3

Accordingly, I concur in the opinion of the Court insofar as it develops, announces and applies the new rule, as well as in the judgment of the Court.

APPELLANT’S MOTION FOR REHEARING

. All emphasis is mine unless otherwise indicated.

. Clearly the Legislature as a matter of public policy and the medical profession as a matter of ethics are insistent that communications between patient and physician be protected against disclosure except in limited circumstances. Conventional drill of legal scholars is that “privileges are blockades to the ascertainment of truth and should be conservatively and reluctantly granted.” Ray, op. cit., § 413, n. 62, 1 Texas Practice 417, quoting Comment to Rule 27 of original Uniform Rules of Evidence. Patently the Legislature and medical community are marching to a different drummer.

.See Federal Rules of Evidence, Rule 612, quoted in full by the majority opinion.