Ballew v. State

on directly passed has not This Court may from a stat- implied whether duress be BALLEW, Appellant, Francis Van Eldon merely imposes penalty which

ute tax. We timely pay for failure to interest however,

have, duress recognized implied Texas, Appellee. The STATE compulsion dealing cases with business No. 59663. is faced with the choice where a business losing right its paying the tax or risk either Texas, Appeals of Criminal Court of contesting the tax. to do business while No. 3. Panel Christi, 146 Tex. City Corpus See Crow 922, (1948); Cen 558, Union 209 S.W.2d 17, 1980. Dec. Mann, 138 Tex. tral Life Insurance Co. v. 27, Rehearing On Oct. 1982. 242, 477, (1941); National 158 S.W.2d 293, 135 Biscuit Co. v. 134 Tex. 687, (1940); 692-93 Austin National 272, Sheppard,

Bank v. 123 Tex. 71 S.W.2d (1934). reasoning underlying

We believe

rule applicable. Highland is justifiably was penalties

anxious to avoid the and interest

which would accrue while the case was on importantly, More it would have

appeal. very embarrassing religious

been for this against

institution to have execution issued may give

it. A final decision in this case

guidance regarding liability the future tax Highland property. on this taxing authorities could not have by Highland’s payment.

been misled

appeal by Highland May bond was filed ‍​​​‌‌‌​‌‌‌‌​​​​‌​‌‌​‌‌‌​‌‌​​​​​‌​‌‌​‌‌​‌​‌​​‌​‌​‍on 1981; requested record was

Highland day, May on same and on attorney for the Water District requested

and the Abilene I.S.D. addi-

tional matters be included in the record. parties

Briefs were filed all and the

appeal prosecuted diligence. Not

until after an had been delivered appeals taxing court of did the authori-

ties file their motions to dismiss the cause

as moot.

We judg- conclude from this record the voluntarily paid by Highland.

ment was not

Therefore, appeals the court of erred

reversing judgment of the trial court

and dismissing the cause. judgment appeals of the court of

reversed and to that the cause is remanded

court for determination the merits of

Highland’s appeal. exam-

plaining prosecutor’s improper of the argument of witnesses and ination evidence is not sufficiency jury. disputed. attorney- contends that his

Appellant trial when the privilege was violated client to examine prosecutor allowed the court wit- expert psychiatric appellant’s notes of record re- ness, Dr. David R. Baker. to aid hired Dr. Baker appellant flects trial, At sanity defense. preparation appel- that he examined Baker testified period two-month times over a lant several trial. Dr. Baker’s preceding the at the time appellant was insane was that commencing cross- of the offense. ‍​​​‌‌‌​‌‌‌‌​​​​‌​‌‌​‌‌‌​‌‌​​​​​‌​‌‌​‌‌​‌​‌​​‌​‌​‍Before requested and examination, prosecutor to turn over the court ordered Dr. Baker during his exami- reports and notes he took Appellant’s appellant. nations of protected were under the notes overruled. attorney-cliеnt privilege was and reports prosecutor then utilized Dr. Baker’s impeach notes to opinion. today us is one question presented to impression: proceed- In a criminal

of first and utilize re- ing, can the state discover expert and notes of a defendant’s ports witness? psychiatric attorney-client privi In Texas Mitchell, Dallas, appel- Lawrence B. 38.10, lege statutorily embodied as Article lant. represents a cod provision This V.A.C.C.P. Wade, Henry Wilensky Atty., Dist. Steve common law deeply-rooted ification of the Lucas, Jr., Hugh Dist. Dal- Atty., Asst. serves a rule of evidence that It las, Huttash, Austin, Atty., Robert State’s disclosure, of the bars without the consent for thе State. client, pass of communications that in confi attorney and his dence between client ROBERTS, Before and PHIL- ODOM employ during professional the course of LIPS, JJ. State, 600 ment. Brasfield v. S.W.2d State, (Tex.Crim.App.1980); Russell v. OPINION (Tex.Crim.App.1980). PHILLIPS, Judge. complexities of our mod Given the This is an appeal from conviction represent cannot society, lawyers ern often Punishment was at life murder. assessed nonlegal effectively their clients without imprisonment. result, gen assistance. As a it has become

Appellant erally accepted scope contends that the court erred that the attor allowing discovery by ap- encompasses agеnts of notes made ney-client privilege pellant’s expert Appellant attorney also required witness. whose services are sets forth grounds prepare several of error com- his client’s properly order to Alvarez, plored opposing on cross-examination of E.g., case. United States (3rd Cir.1975) (psychiatrist); (citations omitted) F.2d 1036 psychiatrists.” Kovel, (2nd 296 F.2d 918 United States foregoing, we hold light Cir.1961) (accountant); United States extended attorney-client privilege White, Cir.1980) (5th (psychi- 617 F.2d 1131 testimony and his notes and to Dr. Baker’s atrist). Wigmore, Evidence § However, reports from the examinations. 1961). (McNaughton rev. absolute, may be privilege is not at Numerous have extended the states State, waived. Cruz torney-client privilege psychia to include (Tex.Crim.App.1979). We now determine attorney trists hired to aid defense attorney- appellant whether waived the preparation sanity of a defense. See privilege by calling psychiatrist client (Fla. e.g. Pouncy v. 353 So.2d the stand. App.1977); Houston v. 602 P.2d 784 privi generally have held that the States (Alaska Pratt, 1979); v. 398 A.2d 421 State lege is waived when the defendant calls his Sorna, (Md.App.1979); People v. 276 psychiatrist e.g. Pouncy to the stand. See People v. (Mich.App.1979); N.W.2d 892 State, Tensley, 249 supra; v. State v. Lines, Cal.Rptr. 13 119 531 Cal.3d (Iowa 1977); People N.W.2d 659 v. New (1975). P.2d 793 (Ill.1972); bury, 290 592 State v. N.E.2d Tay As aptly stated in United States (Wash.1971); Tar Gregоry, P.2d lor, (4th Cir.1971): 437 F.2d 377 n. 9 State, (Miss.1970); rants 236 So.2d is cru- psychiatrist The assistance of a Whitmore, Cal.App.2d People v. effec- respects cial in a number of to an Cal.Rptr. (1967); see also ex rel. place, tive In the first insanity defense. Brown, County Dept. Juv. for Lane presence psychiatric the or absence of (Or.App.1974); P.2d 569 United States testimony presentation the is critical to of State, Alvarez, supra; compare Houston v. terms, a practical defense at trial. “In supra. expert successful defense without testi- mony ex- only will be made in cases so us, appellant In the case before treme, compelling sympathy or so Baker, privatе psychiatrist, called his Dr. defendant, prosecutor the that the is un- the Dr. Baker testified in detail stand. Goldstein, likely bring them at all.” of concerning appellant. his examinations Defense, (1967). The Insanity 124-125 reports during taken the The notes and expert Moreover the for oth- use of an the issue examinations were material to of er, non-testimonial, functions can be appellant’s Following the wisdom sanity. equally important. Consultation states, appellant of sister we hold that our lay attorney counsel attunes the to unfa- ex attorney-client privilege, as waived his concepts miliar but central medical and put Dr. psychiatrist, when he tended him, mаtter, an to assess enables initial No error is shown. Baker on the stand. offering advisability the of soundness and error, appel- grounds several other of psychiatrist the defense. The aid of a prose- the challenges authority of lant the of guides presentation informs and the defense, Dr. Baker’s medical re- important- most cutor to discover perhaps contends that ‍​​​‌‌‌​‌‌‌‌​​​​‌​‌‌​‌‌‌​‌‌​​​​​‌​‌‌​‌‌​‌​‌​​‌​‌​‍ly, permits lawyer inexpert ports Appellant it and notes. probe intelligent- was established psychiatry predicate discovery science of no rule, testimony. ly jury” the foundations of adverse the “use before the pursuant rule, re- or the “recollection “Gаskin” “If an accused is to raise an effective that once Having decided defense, freshed” it is clear that he will insanity reports took the stand his were Dr. Baker psychiatrist as a witness. He need discoverable, longer privileged no and were determining will his aid in the kinds need elicited, not consider these contentions. specialists to be we need consulted, of error are grounds to be areas to be ex- The overruled. Any prosecutor’s he error in the comment Appellant next contends that was de- by the court’s action in prived prosecutor of a fair trial because the was cured sustain- ing giving instruction improperly revealed statements made disregard. Compare Johnson v. appellant during sanity to Dr. Baker (Tex.Crim.App.1974). trial, examinations. At Dr. Baker testified ground of error is overruled. appellant was insane at the time of the prosecutor requested offense. The and was error, grounds appellant again In two allowed to review Dr. Baker’s notes. Dur- complains argument improper jury cross-examination, ing prosecutor made prosecutor. alleged The first error oc- repeated reference to statements made prosecutor curred when the stated: appellant during private to Dr. Baker I Baker —I asking And was was Appellant objected examinations. that use saying, you give example “Can me an of the statements to Dr. Baker violated psychotic if he episode?” don’t know Article 46.02(3)(g), objec- V.A.C.C.P.1 ever give example psy- did me an tion was overruled. episode. chotic Honor, MR. MITCHELL: Your I ob- appellant Prior trial had been ject. That’s a misstatement of the evi- competent found to stand trial. At trial said, dence. I believe the doctor “Look at jury appellant’s issue before the tape of Van Ballew.” sanity. In DeRusse v. 579 S.W.2d Following overruling the court’s appel- 224, 230 (Tex.Crim.App.1979), was held objection, lant’s prosecutor elaborated that Article 46.02(3)(g), supra, pro does not previous on his comment: use, hibit “the trial sanity relative to the that, MR. I’ll come to TOKOLY: also. defense, of the defendant’s statements got him, said, I asking Then around to I psychiatrist during a combined compe “Doctor, you any psychotic did observe tency/sanity examination.” Dr. Baker ex episodes?” amined appellant subsequent compe to the tency hearing. Dr. Baker’s was

presented only was, “No, in regard appellant’s And his answer except sani ty at the time of my interpretation the offense. No tapes.” violation the video 46.02(3)(g), Article supra, is shown. See stop right Now let’s there. He ob- also Riles v. (Tex. therefore, psychotic episodes, served no in Crim.App.1980). ground The of error is interviews, any of his four according to overruled. emphatic testimony of Dr. Baker. only psychotic episodes And the that he Appellant next complains improp interprets is in the tapes. video And er jury argument by prosecutor. Dur point. here’s the And here’s the crux of ing guilt-innocence trial, stage of the the matter. tapes He saw the video after prosecutor argued: diagnosis he made his syn- of borderline drome. Not Then we before. brought you Dr. John Hol- Now, brook. things a few about Dr. Hol- The argument appellant other that as- brook that I important. think are Dr. serts was imprоper prosecu- involved the Holbrook appointed was aby Judge, by tor’s reference to a state’s witness: Judge John Mead because experi- of his all, brought First of we you witnesses ence. who saw the Defendant before the of- Appellant’s objection was sustained and the They fense. saw the Defendant after the jury was disregard. Appel- instructed to offense. of the Some witnesses saw the lant’s motion for mistrial was overruled. during period Defendant of time cov- V.A.C.C.P., ey 46.02(3)(g), provides: may 1. Article to stand trial be admitted in evidence against guilt any defendant on the issue of in during No statement made the defendant proceeding. criminal hearing competen- the examination or on his Now, develop were relevant the state’s tions tapes. the video Glenda ered overruled. really ground The of error is theory. didn’t Storey secretary. is his She contacted her. want to talk to me when I is affirmed. judgment The her got subpoenaed I before finally The was I wanted Jury. reason Grand FOR MOTION APPELLANT’S person a who testimony. her felt that REHEARING long a secretary a for someone had been DAVIS, Judge. TOM G. of time— period submission, panel original On prosecutor Appellant’s objection that was not in held that the trial court Court was overruled. prosecutor to when it allowed the error Generally, will not argumеnt an psy- expert of appellant’s the notes examine unless, light of reversible constitute error witness, Dr. R. Baker. David chiatric whole, language com the record as a appellant to aid Baker was hired harmful, improper, plained manifestly He sanity of a defense. preparation State, 590 Simpkins v. prejudicial. times over a appellant several examined Kerns (Tex.Crim.App.1979); Baker period prior to trial. two month (Tex.Crim.App.1977). 550 S.W.2d 91 during examination. At episode in front of video tating psychotic Ballew. machinery in room tape the “book-in” “Q. do have those right. you All And City prosecutor The the Garland Jail. you now. Do present notes with Boyd: аsked you not? Q. Now, knowledge Okay. have you do Yes, I “A. do. attorney, to whether or not a defense you have “Q. right. All I take it And have ac- attorney, criminal defense would memory from those your refreshed videotape that area the cess to [where here testifying prior your notes to clients machinery is as far as located] Have not? today? you representing (sic) that he is or concerned? “A. Yes.” Honor, we ob- MR. Your HENDLEY: provide ordered Baker to defense The court ject as to whether or not criminal notes prosecutor. for to the Such general. the document. writing Sewell v. 367 S.W.2d 349 claimed that the contains matters not (Tex.Cr.App.). subject related to the matter of the writing the court shall examine the in cam- era, Evidence, 612, any portions related, 2. Federal Rules of excise not so Rule 28 U.S. C.A., governs delivery party order of the remainder to the circumstances under which party Any portion inspect an adverse is entitled to entitled thereto. and use withheld over writing objections preserved for cross-examination a which a wit- shall be avail- made present appellate ness uses in order to refresh his recol- able to the court in the event of an ” provides part: appeal.... lection. That rule in Code of California Evidence since 1967 “Except provided as оtherwise criminal witness, has “if mandated that either while proceedings by 18, section 3500 of title Unit- thereto, prior testifying writing or uses a Code, writing ed States if a witness uses memory any respect refresh his matter memory purpose testify- refresh his for the testifies, writing about which he such must be ing, either— produced hearing request at the at the “(1) an testifying, while or party.” “(2) adverse Cal. Evidence Code Sec. 771 testifying, before if the court in its Silberstein, (West). People also See necessary discretion determines 848, Supp. Cal.App.2d (1958). 323 P.2d 591 justice, interests of allowing was no error in the court There inspection where or when the less of Baker’s notes for to obtain Dr. Wigmore the Stаte document occurs. As after he tes- of cross-examination purposes though there is no states: ‘For his he had refreshed tified that stimulated, yet memory being to a thus testifying. prior from such notes imposition risk and the need of (3 just great.’ Wigmore safeguard is rehearing is for appellant’s motion 762, Evidence, p. 111).” on 3rd ed. sec. overruled. at 821. Id. P.J., ONION, dissents. Marsh, Likewise, in Commonwealth 713, (1968), the Massa Mass. 242 N.E.2d DALLY, J., concurs in results. : stated Supreme chusetts Court FOR MOTION APPELLANT’S distinction to allow “It is an artificial REHEARING on the stand to inspection of notes used and to decline it refresh recollection ROBERTS, concurring. Judge, just his notes inspects the witness where opinion that the Judge Tom Davis’s join to the stand.” Id. bеing before called inspect the memoran- was entitled N.E.2d at 551. had appellant’s witness dum from which at a simi jurisdictions Other have arrived Therefore, there refreshed his recollection. right of considering lar conclusion when applicability of to consider the is no need a witness to writing by access to a used witnesses. rule to defense the Gaskin prior to the time refresh his recollection reason, I think it and because For that e.g. took the stand. Z. that the witness See case, I not misreading of the do involves a 3 Cal.3d Superior Angeles, Court of Los when it Tom Davis’s join Judge 594, (1970); 478 P.2d Cal.Rptr. says: Estrada, 713, Cal.Rptr. People v. 54 Cal.2d not involve the instant case does “The Olson, (1960); People v. 355 P.2d 641 Dr. Baker was Rule’ because ‘Gaskin 375 N.E.2d Ill.App.3d 16 Ill.Dec. appellant. by witness called as a (1978). 944.” 492 S.W.2d Bizzarri jurisdictions other The fact say read to Bizzarri should not be a rule have criticized and textbook writers witness apply to a rule does not Gaskin alone, not, standing hap- we have embraced does Bizzarri did the defendant. called witness, of such but furnish reason for abandonment a defendant’s pen to involve However, inapplicable not have not precedent does rule was the Gaskin we underpinning, that reason. some sort of reasonable the sand when bury our heads in should ‍​​​‌‌‌​‌‌‌‌​​​​‌​‌‌​‌‌‌​‌‌​​​​​‌​‌‌​‌‌​‌​‌​​‌​‌​‍the defendant because inappliсable It was is voiced. such criticism statements seeking Gaskin in Bizzarri own witness. made his which had been case present While the notes with disclosure rule has to do The Gaskin jury, before the were not used Dr. Baker for cross-exami- statement prior a witness’s an issue after their contents became need normally would be no There nation. such he had referred to witness stated that own of one’s the Gaskin statements to refresh notes before in order witness, normally may not cross-ex- for one show Testimony present recollection. all that I That is one’s own witness. amine in his notes the ing actually referred to of purpose for the presence jury оf the FOR MOTION APPELLANT’S It was refreshing present recollection. REHEARING inspect to the the permissible then State concurring. CLINTON, Judge, of credibility notes in test the order to was not trial court notes could Panel held if the The Court Baker determine and R. Bak- Dr. David when it ordered in error or his recollection. properly did refresh limbo, er, in to who had exam- matter there is not cause dis- practicing psychiatrist and to the appellant, produce ined deliver re- Though the rule of “recollection sent. by Dr. Baker prosecution all notes made by majority apply freshed” fashioned of during the course of his examination any qualified uses every witness who once The Panel reasoned that appellant. pur- for the writing to refresh his to the witness Dr. Baker had been called me as a sudden pose of strikes expert appellant, presented as an stand of decisions under the years break with respect and testified with to the his field elsewhere, Ray, here and see common law defense, longer were no sanity reports “his cit., 542, seq., 513 et op. 1 Texas Practice § were discoverable.” For privileged and not all that radical.3 is reason, Panel, that “we need not said I in the Accordingly, concur contentions,” one of consider these [other] announces develops, the Court insofar as it called the regarding which is what was rule, well applies and the new as as “recollection refreshed” judgment of the Court. However, proceed En Banc has the Court ed to refreshed” address the “recollection FOR APPELLANT’S MOTION rule, to have today majority and seems REHEARING engrafted part of “Present Recollection” TEAGUE, Judge, dissenting. part and a of “Past Recollection.” See 37, (Tex.Cr. Wood v. reading studying majority After and Evidence, App.1974) Ray, and Texas Law of that, opinion, I have concluded whatever 541, seq. 1 Texas Practice 512 et § for, future may else it stand it will testify to witnesses who deal much mischief somewhere, though, finding Lost is the attorneys, prosecuting defense and that, respect Panel to the Court misery respective attorneys, much attorney-client privilege by appel- asserted lant, and a massive headache for the conscien- “once Dr. Baker took the stand his tious, judge. I reports longer privileged objective were no and were trial court fasion, one, two, That the majority discoverable.”1 and three fails find that finding likely address to become the long majority implicitly has overruled such focus of much debate when similar situa- govern- standing rules of law of again presented. tions are Especially so ing following: “The Past Recollection Legislature now that has created that “The Present Recollection Recorded” and which did not exist in the common law: law; rule Revived” rules of “The Gaskin” privileged physi- communications between law; Jury” and the Before the rule “Use cit., patient. op. cian and Compare Ray, law, as and under what circum- to when 431, 415-416, 1 Texas Practice with the § stances a cross-examiner shall have access Act, 4495b, Medical Practice Article § testifying witness. any writings 5561h, Confidentiality and Article of mental future, by today’s implicit and unlim- individual, health information of V.A.C.S.2 holding, although opinion speaks ited nevertheless, witness, I only of “notes” of a agree reports do not Baker cross-examiner, whether he believe that a were “discoverable” he took the because stand, attorney or a defense at- presented prosecuting under the circumstances be a receive majority here. But since the leaves that now be entitled to torney, should conservatively emphasis ment of truth and should be 1. All is mine unless otherwise indi- cit., reluctantly Ray, op. granted.” n. § cated. 417, quoting 1 Texas Practice Comment Clearly Legislature public 2. original as a matter of Rules of Rule 27 of Uniform Evidence. policy profession a matter Legislature and the medical Patently and medical communi- of ethics be- are insistent that communications ty mаrching to a different drummer. are protected patient physician tween against be except in limited circum- disclosure Evidence, Rule Rules 3.See Federal legal stances. drill of scholars is Conventional majority opinion. quoted in full “privileges are to the ascertain- blockades writing witness, some sort of we underpinning, in for reasonable anything from that purposes, provided bury cross-examination in the sand should not our heads the cross-examiner has created an issue when such criticism voiced. is major- By the testimony. from the witness’ when ity opinion, that can be created issue THE RULE witness merely the cross-examiner asks the were not present While notes case had, testifying, ever prior whether he to by jury, used Dr. Baker their before writing/s pertained referred to such which became after the wit- contents an issue to his refresh his in order to ness referred to such stated he had present recollection. that condition Once to refresh testifying notes before in order satisfied, then, majority has been by today’s Testimony present his recollection. opinion, the will entitled cross-examiner be showing referring Baker’s act in inspect any writings previ- to the witness equivalent notes was the functional ously memory. used to The refresh his having actually Baker referred to his will use the cross examiner bе entitled to presence jury for the notes in the credibility of writings in order test the refreshing present his recollec- purpose writings the witness and determine if the for the permissible tion. It was then properly could or did refresh the witness’ order to test inspect the notes in recollection. credibility of Baker if the notes could it majority The tells us that implicitly properly or did refresh his recollection. the wit- type matters not what form or good rule works both As of evidence ness comes when he or arrives in Court she Montemayor see ways, cause,

prior testifying nor does (Douglas, J. Dis (Tex.Cr.App.1976) personally state that witness had for senting Opinion On Motion Stаte’s ma- prepare the Because the memoranda. the above new rule should Rehearing),* limita- jority any does not state explicitly apply testify for only to witnesses who therefore, law, I, tions on its new rule of accused, but also to witnesses who testi strongly prosecuting attor- recommend to fy prosecuting attorney. for the they care- neys attorneys and defense fully following, read the which I find rule Now that we all what the new know majority opinion to be implicitly states is, supra, pose hypo- of law see some let us so, for doing new rule. substitute please first, questions. thetical a statement: But Baker”, the names “Baker” or “Dr. majority opinion state that Dr. does not “witness”, instance word because this attorney-client comes Baker within the witness, Baker, medium merely or, original privilege, panel opinion, cf. chose through majority which the Court’s matter, privilege. any other express new law. its rule of must, therefore, Ias am sure the members will do of the Bench and Bar of this State THE BACKDROP future, following ques- in the near ask the holding opinion’s of notes right inspection majority to demand tions: Does comes by a witness mean that if a witness used to refresh also even writings attorney-client limited used has been us within boundaries of 38.10, V.A.C.C.P., on limita- Art. privilege, the witness the stand. Such see cross-examination, text writers are рurposes tion has been criticized there any writings courts of jurisdictions... other not to be limitations on what jurisdictions textbook fact that other of the witness the cross-examiner is entitled we have writers have criticized a rule to receive from the witness? Does alone, not, fur- What if standing embraced does include a defendant? spouse nish reason for of such the defendant’s testifies for the de- abandonment However, have Art. precedent prosecution? does not Or the See fendant? * 1977). Cr.App. (Tex. also Coleman

247 V.A.C.C.P., State, 38.11, trial Taylor v. court objective and conscientious 3, 167 if (1914). What give Tex.Cr.R. S.W. will the State throughout judges cf. regular psychiatrist, thе defendant’s de- rightfully meaning it the Baker, for the defendant? supra, testifies un- perhaps serves, opinion, majority the What for psychiatrist if the testifies State’s rights of a expands the knowingly, also V.A.C.S., 5561h, the State? See Art. discovery within of materials defendant to Frank, (5th Cir.1980); Abell F.2d attorney. prosecuting the possession the of Abell, parte Ex (Sup.Ct.Tex. S.W.2d 933, 940 Quinones Cf. 1981). religious What if the defendant’s 39.14, V.A.C.C.P. Art. (Tex.Cr.App.1980); Art. adviser testifies for the accused? See Judge contained within excerpt the By 3715a, witness What if the State’s V.A.C.S. I observe dissenting opinion, Clinton’s Doe, an informer? See United States only wanted to attorney not prosecuting the (5th Cir.1976). if the F.2d 878 What witness, but addi- the materials of view wit- type witness is a “self-incrimination” “photostate those tionally to wanted [sic] Draper ness? As cross examination.” prior notes to [his] (Tex.Cr.App.1980). if the What State’s reflects, judge ordered excerpt trial policeman? By witness is a its failure the notes” to counsel to “deliver defense which, law, as elaborate on its new rule of and, have attorney, as we not- noted, prosecuting effectively I believe will overrule law, new of major ed, through adoption I rule principles several rules or of its of find a dis- majority opinion does judge trial law, that the majority states service to the Bench and Bar of this State Thus, ruling. in the fu- the correct made by such omission. hаs had ture, testifying if a State’s witness prosecuting

As file majority on its to the entire privy fails to elaborate law, I, else, new everyone that, demand, rule of like must upon attorney, assume wait and see how applied it will be turn attorney must now over prosecuting But, as I leads opinion, future. read the file attorney the entire State’s the defense defendants, tome believe that but only allow the judge must and the trial court well, prosecuting attorneys as have received period of attorney a reasonable defense possible a non-asleep bed uninvited “photostate” all of the time order partner. IAnd must not overlook trial course, file, which, of documents in the judges: What is to used if standard be product pros- the work should include trial judge fails turn over to a defendant ecuting attorney. rightfully demanded “notes” a new rule adoption of the To the Court’s up Will actually witness has? the rule end worded, law, and to presently as it is being one-way Today, majori- street? expansion the abuse of what I fear is an ty states that for the prosecutor asked law, opin- as the notes such made record, reviewing the we find After trial, opinion, his Baker testified that so errors, any, were not prosecutor’s was insane at the time appellant require harmful as to a reversal. cross-exаmination, prose- offense. On are grounds of error overruled. following ques- Dr. Baker the cutor asked tions: the trial Appellant next contends Doctor, overruling you you court erred in do “Q. have said propounded by prosecutor. have taken question you notes that have police officer exam- your called with prosecutor Garland down connection prosecutor Is Boyd Arlen stand. ination. that correct? show a crimi attempted appellant, the four I took notes on all “A. Yes. intentionally imi attorney, was nal defense Mr. occasions that I visited

Notes

would like notes attorneys We his purposes of extensively used lawyer were then particular him to ask about that cross-examination. here. Two Appellant’s was overruled. in does not The instant cause prosecutor Boyd asked questions later Dr. Baker “Gaskin Rule” because volve the to the “book- previous had access appellant by appellant. as a witness was called room. in” State, (Tex.Cr. 944 S.W.2d Bizzarri Therefore, was not enti supported App.). was State theory, state’s which holding in Gas notes under the trial, ap- was that to the evidence adduced at tled by 7, State, ques- 172 Tex.Cr.R. S.W.2d feigned pellant mental illness. kin Further, ‍​​​‌‌‌​‌‌‌‌​​​​‌​‌‌​‌‌‌​‌‌​​​​​‌​‌‌​‌‌​‌​‌​​‌​‌​‍strange 467. was entitled to the stand. This seems since the jury the notes under the “use rule.” before appear equally applicable writ- reasons to rule, any such applies Under which to wit ings by the witness to refresh his used ness, party inspect, upon is entitled to memory he before testifies. Newer cases document, timely request, any instrument jurisdictions in other have so extended by or statement which has used been right, and that is now the rule in the party jury way other before the in such a federal courts. ...” its contents become an issue. See Court, Supreme People The Illinois State, (Tex.Cr. White Scott, 97, (1963), 29 Ill.2d 193 N.E.2d 814 State, App.); Collins v. Tex.Cr.R. notes, a witness’ which are determined that In the cause, instant S.W. 933.1 the notes memory, used to refresh must be tendered were nоt used by appellant jury before opposing though they to the counsel even during the course of Baker’s direct exami prior taking are reviewed to the witness nation. review stand. Scott witness did not right inspection to demand of notes any memoranda while on the stand or in the by used a witness to refresh his has courtroom, rather, police officer who been by limited us writings by to used refreshed his by recollection witness on the stand. limitation Such has reading superior’s police report pre his by been criticized text writers and courts of ceding day. The Scott court said: jurisdictions. other In 1 Ray, R. Texas by “Had reference been made the officer Evidence, ed., 524-526, 3rd pp. Sec. it is captain’s report during to the his testimo- written: ny purposes refreshing his recollec- writing “The which is used to refresh the tion, question we assume no could be recollection of the witness must on de- necessity raised as for its exhibi- mand be shown opponent for his tion to defense counsel for examina- inspection and use on cross-examination tion during and use cross-examination. may so that he opportunity have an logical We see no substantial or differ- test the credibility of the witness and see situation, ence between that and the one if it could properly or does refresh his where the witness the re- right reсollection. This to demand in- examine[d] spection has usually freshing prior stepping been document into limited Texas Courts as well opportunity as those of other the courtroom. The for mis- states to writings used the witness on equally present regard- chief or error is party 1. See also Jackson v. “an adverse Tex.Cr.R. entitled to have the 97; it, writing produced hearing, inspect Palacio v. 164 Tex.Cr.R. at the thereon, 301 S.W.2d 166. Under such circumstanc- to cross-examine the witness and to es, jury applicable portions “use before the rule” is introduce evidence those which regard opposing party access relate to the of the witness. If it is

notes referring ing Baker’s act limit the say. It does not Bizzarri to read hav of Baker equivalent was the functional witnesses. party’s either rule to Gaskin

notes well judge and the trial the wit- discretion rule ordered ness turn the prosecut- notes over to the the new rule of failure to elaborate on ion’s ing pur- for attorney cross-examination law, respectfully I must dissent. poses, and in this no Will there was error. tomorrow, majority, this Court’s same police pros- where a testifies officer defendant, his at- through ecution and torney, demanded, has is re- rightfully but fused, the officer’s notes and offense re- ports cross-examination, purposes after the officer has testified that he had refreshed his from such notes prior is a testifying, there summarily conviction and re- appeal, an verse the I believe conviction? Because

Case Details

Case Name: Ballew v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 27, 1982

Citation: 640 S.W.2d 237

Docket Number: 59663

Court Abbreviation: Tex. Crim. App.