Ballew v. State

TEAGUE, Judge,

dissenting.

After reading and studying the majority opinion, I have concluded that, whatever else it may stand for, it will in the future deal much mischief to witnesses who testify for prosecuting and defense attorneys, much misery to the respective attorneys, and a massive headache for the conscientious, and objective trial court judge. I find that in one, two, and three fasion, the majority has implicitly overruled such long standing rules of law of this State governing the following: “The Past Recollection Recorded” and “The Present Recollection Revived” rules of law; “The Gaskin” rule of law; and the “Use Before the Jury” rule of law, as to when and under what circumstances a cross-examiner shall have access to any writings of the testifying witness. In the future, by today’s implicit and unlimited holding, although the opinion speaks only of “notes” of a witness, nevertheless, I believe that a cross-examiner, whether he be a prosecuting attorney or a defense attorney, should now be entitled to receive *246 anything in writing from the witness, for cross-examination purposes, provided that the cross-examiner has created an issue from the witness’ testimony. By the majority opinion, that issue can be created when the cross-examiner merely asks the witness whether he ever had, prior to testifying, referred to such writing/s which pertained to his testimony in order to refresh his present recollection. Once that condition has been satisfied, then, by today’s majority opinion, the cross-examiner will be entitled to inspect any writings the witness previously used to refresh his memory. The cross examiner will be entitled to use the writings in order to test the credibility of the witness and determine if the writings could properly or did refresh the witness’ recollection.

The majority implicitly tells us that it matters not in what form or type the witness comes when he or she arrives in Court prior to testifying in a cause, nor does it state that the witness had to personally prepare the memoranda. Because the majority does not explicitly state any limitations on its new rule of law, I, therefore, strongly recommend to prosecuting attorneys and defense attorneys that they carefully read the following, which I find the majority opinion implicitly states to be the new rule. In doing so, please substitute for the names “Baker” or “Dr. Baker”, the word “witness”, because in this instance the witness, Dr. Baker, is merely the medium through which the Court’s majority chose to express its new rule of law.

THE BACKDROP

The right to demand inspection of notes used by a witness to refresh his memory has been limited by us to writings used by the witness on the stand. Such limitation has been criticized by text writers and courts of other jurisdictions... The fact that other jurisdictions and textbook writers have criticized a rule we have embraced does not, standing alone, furnish reason for abandonment of such rule. However, if precedent does not have some sort of reasonable underpinning, we should not bury our heads in the sand when such criticism is voiced.

THE RULE

While notes in the present case were not used by Dr. Baker before the jury, their contents became an issue after the witness stated that he had referred to such notes before testifying in order to refresh his present recollection. Testimony showing Baker’s act in referring to the notes was the functional equivalent of Baker having actually referred to his notes in the presence of the jury for the purpose of refreshing his present recollection. It was then permissible for the State to inspect the notes in order to test the credibility of Baker if the notes could properly or did refresh his recollection.

As a good rule of evidence works both ways, see Montemayor v. State, 543 S.W.2d 93, 99 (Tex.Cr.App.1976) (Douglas, J. Dissenting Opinion On State’s Motion for Rehearing), * the above and new rule should apply not only to witnesses who testify for the accused, but also to witnesses who testify for the prosecuting attorney.

Now that we all know what the new rule of law is, see supra, let us pose some hypothetical questions. But first, a statement: The majority opinion does not state that Dr. Baker comes within the attorney-client privilege, cf. the original panel opinion, or, for that matter, any other privilege. I must, therefore, as I am sure the members of the Bench and Bar of this State will do in the near future, ask the following questions: Does the majority opinion’s holding also mean that even if a witness comes within the boundaries of the attorney-client privilege, see Art. 38.10, V.A.C.C.P., for purposes of cross-examination, there are not to be any limitations on what writings of the witness the cross-examiner is entitled to receive from the witness? Does this include a testifying defendant? What if the defendant’s spouse testifies for the defendant? Or the prosecution? See Art. *247 38.11, V.A.C.C.P., and Taylor v. State, 74 Tex.Cr.R. 3 , 167 S.W. 56, 61 (1914). What if the defendant’s regular psychiatrist, cf. Dr. Baker, supra, testifies for the defendant? What if the State’s psychiatrist testifies for the State? See Art. 5561h, V.A.C.S., and Abell v. Frank, 625 F.2d 653 (5th Cir.1980); Ex parte Abell, 613 S.W.2d 255 (Sup.Ct.Tex.1981). What if the defendant’s religious adviser testifies for the accused? See Art. 3715a, V.A.C.S. What if the State’s witness is an informer? See United States v. Doe, 525 F.2d 878 (5th Cir.1976). What if the witness is a “self-incrimination” type witness? See Draper v. State, 596 S.W.2d 855, 857 (Tex.Cr.App.1980). What if the State’s witness is a policeman? By its failure to elaborate on its new rule of law, which, as noted, I believe will effectively overrule several major rules or principles of law, I find that the majority opinion does a disservice to the Bench and Bar of this State by such omission.

As the majority fails to elaborate on its new rule of law, I, like everyone else, must wait and see how it will be applied in the future. But, as I read the opinion, it leads me to believe that not only defendants, but prosecuting attorneys as well, have received a possible uninvited and non-asleep bed partner. And I must not overlook trial judges: What standard is to be used if a trial judge fails to turn over to a defendant rightfully demanded “notes” a testifying witness has? Will the rule actually end up being a one-way street? Today, the majority states that the prosecutor asked for the notes and the trial judge ordered the witness to turn the notes over to the prosecuting attorney for cross-examination purposes, and in this there was no error. Will this Court’s same majority, tomorrow, where a police officer testifies for the prosecution and the defendant, through his attorney, has rightfully demanded, but is refused, the officer’s notes and offense reports for purposes of cross-examination, after the officer has testified that he had refreshed his memory from such notes prior to testifying, if there is a conviction and an appeal, summarily reverse the conviction? Because I believe that conscientious and objective trial court judges throughout the State will give this opinion the meaning it rightfully deserves, the majority opinion, perhaps unknowingly, also expands the rights of a defendant to discovery of materials within the possession of the prosecuting attorney. Cf. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Cr.App.1980); Art. 39.14, V.A.C.C.P. By the excerpt contained within Judge Clinton’s dissenting opinion, I observe that the prosecuting attorney not only wanted to view the materials of the witness, but additionally wanted to “photostate [sic] those notes prior to [his] cross examination.” As the excerpt reflects, the trial judge ordered defense counsel to “deliver the notes” to the prosecuting attorney, and, as we have noted, through its adoption of the new rule of law, the majority states that the trial judge made the correct ruling. Thus, in the future, if a testifying State’s witness has had privy to the entire file of the prosecuting attorney, I assume that, upon demand, the prosecuting attorney must now turn over to the defense attorney the entire State’s file and the trial court judge must allow the defense attorney a reasonable period of time in order to “photostate” all of the documents in the file, which, of course, should include the work product of the prosecuting attorney.

To the Court’s adoption of the new rule of law, as it is presently worded, and to what I fear is an expansion of the abuse of discretion rule of law, as well as the opinion’s failure to elaborate on the new rule of law, I must respectfully dissent.

See also Coleman v. State, 545 S.W.2d 831, 835 (Tex.Cr.App.1977).