Crawford v. State

COHEN, Justice,

concurring and dissenting.

I agree with the majority, except for the disposition of point of error six.

Relying on Thomas v. State, 837 S.W.2d 106 (Tex.Crim.App.1992), appellant contends the trial court should have ordered production of a Crime Stoppers report she requested during cross-examination of Officer Wiatt. John Brown had testified he told Officer Wiatt that he (Brown) had promised to pay T.R. Oliver $500 for this murder. Officer Wiatt testified to the same fact. Officer Wiatt was impeached on cross-examination when defense counsel pointed out that this important statement by Brown was not mentioned in Wiatt’s offense report. Wiatt conceded that, but responded that he had recorded Brown’s statement to that effect in his Crime Stoppers report. Appellant requested the Crime Stoppers report to see if Wiatt was telling the truth. If the report had been examined by the trial judge and did not contain any such statement, the trial judge would have been required to disclose that to appellant. Thomas, 837 S.W.2d at 112 ; United States v. Bagley, 473 U.S. 667, 676 , 105 S.Ct. 3375, 3380 , 87 L.Ed.2d 481 (1985). The absence of such a statement in the Crime Stoppers report could have significantly affected the credibility of both Brown and Wiatt. Thomas, 837 S.W.2d at 112 . None of this is disputed by the State.

*168 Under similar circumstances in Thomas , the Court of Criminal Appeals held due process of law requires that the Crime Stoppers report be produced and examined by the trial judge in camera, but not disclosed to the attorneys. 837 S.W.2d at 114 . The trial judge was required to determine whether the Crime Stoppers report contained material evidence favorable to the defendant, see Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215 (1963), and to disclose it to the defendant if it did. In addition, the trial judge was required to make fact findings and seal the report for appellate review. 837 S.W.2d at 114 . I believe we should follow that procedure here.

The majority declines to follow this procedure because appellant did not seek to obtain the Crime Stoppers report from the Texas Supreme Court, as required by Tex.Gov’t Code Ann. §§ 414.007-.008 (Vernon 1990). Except for the holding in Thomas , I would agree. In Thomas , the appellant sought relief from the Texas Supreme Court, which denied it. 837 S.W.2d at 108 . Nevertheless, he was granted relief on direct appeal. The Court of Criminal Appeals held that production was constitutionally required even though the Texas Supreme Court had denied production. Id. at 113-14 . If Thomas was entitled to production even though he had been denied it by the Texas Supreme Court, I do not see how we can deny it to appellant here. Why require a defendant to seek relief in the supreme court when the trial court has a constitutional duty to grant the same relief?

Thomas holds that in circumstances like these, the defendant is entitled to production of the record by criminal law courts, even if the Texas Supreme Court refuses to grant it. If, like Thomas, appellant was entitled to this relief even without the supreme court’s approval, I see no purpose in requiring her to seek that approval. Relief should instead be sought from the person presently in charge who has both the power and the duty to order production — the trial judge. Appellant did that. She moved for production under Tex.R.Crim.Evid. 614, just like Thomas did. 837 S.W.2d at 108 n. 3.

I think the holding in Thomas has effectively repealed subsection (b) of section 414-008, which says that only the supreme court may compel production of a Crime Stoppers report. Thomas holds that both the trial court and the Court of Criminal Appeals may do so. If both of those courts have a constitutional duty to produce the record even after the supreme court has refused, I believe we also have the same constitutional duty even though the supreme court has not been asked for relief.

I would defer ruling on point of error six and order the trial judge to follow the procedure set out in Thomas and send to us his findings of fact and the sealed Crime Stoppers report. After receiving those, I would rule on point of error six.