*1 Division, the Antitrust rather than his en- permit litigant
tire compart- office. To RAMIREZ, Henry Appellant, operations mentalize its to resist disclosure employees, some of attorneys, Texas, Appellee. STATE аgents superior over whom it “has a compel” cooperation, Tex.R.Civ.P. No. 285-89. 166b(2)(b),runs counter to our rules favor- Texas, Appeals Court of Criminal ing full discovery. To the extent that dis- En Banc. covery appropriate concerning part of his 31, operations, Oct. 1990. it should with re- gard portions Attorney to all Gener- 30, Rehearing Overruled Jan. 1991. Although al’s Office.9 the documents in other scope pro- divisions аre within the
duction, possibility we do not foreclose the privileged. those documents are Of
course, Attorney General must
“any necessary support” any evidence
privilege may he claim for these doc- 166b(4).
uments. Tex.R.Civ.P. particular circumstances
presented, we hold that the failure of the judge
trial to conduct an in camera exami- sought
nation citizen letters to be
discovered constituted an of discre- abuse grant according- relief mandamus request seeking
ly. denyWe fоr relief protect discovery the CID materi-
als and documents held divisions of the charged
Attorney General’s office not are confident
antitrust enforcement. We Judge vacating Lowry, after 25, 1990 and Febru-
his orders
ary will conduct further The writ consistent with only if the trial
of mandamus will issue its orders.
court does not so vacate other, Utility various Texas v. off" from each the affidavits of in Public Commission While (Tex.1988, orig. proceed- Cofer, provide specifics to what division heads as ing), in certain instances screening in effect nor how mechanisms are Attorney attorneys divisions of the in different they court’s dis- would be affected the trial representing sides in Office General’s covery order. litigation to be “screened need the same
675 judgment We will reverse the of the court and remand this cause to the proceedings not inconsistent trial court for K_R_testified appellant that for any she unaware of unusual or abnor- A_R_ involving activity mal sexual A_ appellant. also denied that She R_had informed her of such sexual testimo- activity. She further contradicted mother, that she had ny adoptive from her custody of A voluntarily surrendered R_to adoptive рarents her at an earlier time because she was unable to care for A_R_She agree that rela- did her tionship parents with her good engaged one and that she was then custody adoptive par- in a with her battle Howeth, Cobb, Austin, Terrey J.W. for A_R_and ents over two other chil- appellant. cross-examination, objec- dren. On over Earle, Atty. Danya Ronald Dist. Bla- permitted to ask Baird, Austin, zey Atty., Asst. Dist. Robert R_questions use Huttash, Austin, Atty., for of heroin she resided when State. K_R_either Wisconsin. denied us- ing heroin or invoked her of self-in- appeals charac- crimination. The court of ___ R_ n OPINION ON APPELLANT’S PETITION testimony terized as follows: FOR DISCRETIONARY REVIEW simply trying mother a devoted “[S]he arbitrarily to fend off those who would TEAGUE, Judge. away (Slip take her children from her.” jury appellant aggravated A convicted 4.) page Having character- so sexual assault and the trial court assessed K_R_’s testimony, ized the court of punishment, enhanced use of a appeals held that evidence of conviction, felony delivery of at im- highly to use of heroin was relevant rebut рrisonment twenty-five years in for issue.” “substantive Corrections, Department Texas now the Justice, Department of In- Texas Criminal rule is that a stitutional The Third Division. Court impeach to a witness on a not entitled judgment Appeals affirmed the trial court’s to collateral matter. “The test as whether unpublished opinion. in an See Ramirez v. the cross- a matter is collateral whether State, (Tex.App. No. 3-87-271-CR —Aus- examining party be entitled to would tin, 25,1989). grant- delivered tending it as a of his case to establish discretionary re- appellant’s petition ed State, plea.” 587 S.W.2d Bates v. to make the determination view order (Tex.Cr.Aрp.1979). Shipman See also 133 appeals correctly the court of whether v. proper prosecuting it ruled that was not entitled Unquestionably, the State was , natu- attorney question rely on evidenсe in its case-in-chief , eight year ral mother of previously used heroin complaining about K old committed an effort to show that heroin, and whether on A aggravated an R_ sexual assault attempt tо questioning such constituted an K_R_on a collateral issue. impeach 676 is, however,
There
an
Kennedy
State cites us to
(1947),
rule that a
is not entitled Tex.Crim.
allegation
a witness on a collateral mattеr. which involved an
that a witness
was drunk at the time he heard a threat
When a witness leaves a false
*3
being
appli-
“An
made. This Court wrote:
relating
a matter
to his
or
cation
the
the
de-
credibility,
oppоsing party
the
is allowed to
[to
rule]
pends
the fact that the drunkenness
impression.
For exam
or drunken condition of the witness was
ple, “when
the
his direct testi
co-existent,
time,
point
in
with the mat-
mony,
leaves а false
of his-
ter about which he testifies. The
police,
legitimate
‘trouble’ with the
it is
having
proof
offered
of the fact that Woo-
cross-examination to
that the witness
lems
the
was drunk—as within
‘in
had been
troublе’ on occasions other
noted—was under the burden to so show.”
than those about which he offered direct
us, however,
In
case
Id. at 404.
the
before
testimony.”
Nelson v.
K_R_questions,
other than to ask
the State made no other effort to demon-
appeals recognized
The court of
that the
_
_
previously
strate that K
R
had
in,
prove in
State could not
its case
chief
or was under the influence of hеroin
used
used her-
appel-
the time of the incident for which
oin
order to show that
had
prosecuted.
hold that
the
lant was
aggrava-
committed the
offense of
_
_
questioning of K
R
prosecutor’s
ted sexual assault. The court of
improper impeachment.
was
impression”
relied on
“false
instead
the
We further observe that this case was
However,
exception set out above.
R_’s
tried after the effective date of
Rules
contradiction of her
moth-
608(b)
of Criminal Evidence. Rule
states:
er’s earlier statements about a collateral
_
_
Specific instances of conduct of a wit-
matter, namely that K
R
was a
ness,
attacking
purpose
or
mother,
“poor”
did not amount to a blanket
supporting
credibility, other than a
assertion that she had never before been
conviction оf crime as
testi-
trouble. We hold that
609, may
inquired into on cross-ex-
not be
implicate
mony was insufficient to
proved by
amination of the witness nor
ception set out above.
extrinsic evidence.
_
_’s
argues
R
rule,
terms,
_
_
very
its
restrictive.
testimony implied that A
R
counterpart,
the above
Unlike its federal
conspiracy that
lying because of a claimed
exceptions.
_
_’s
rule of evidence allows for nо
allegedly
existed between
A_R
__, namely,
adoptive parents provides for the
The federal rule also
removal from
to ensure
K_R_’s
following:
further
custody. The State
of the conduct of a
[Specific instances
K_R_would
pre-
argues
lie to
however,
may,
in the discretion
witness]
happening.
We find the
vent such
court,
truthfulness
probative
if
especially
arguments unpersuasive,
untruthfulness,
inquired into on
or
given the fact that such was not admissible
(1)
con-
cross-examination of
witness
appel-
against
in the State’s case-in-chief
for truth-
cerning the witness’ character
lant,
is insufficient
and the evidence
untruthfulness,
or
cоncern-
fulness
exception to the
the above
invoke
for truthfulness or un-
the character
inadmissibility.
rule of
witness as to
truthfulness of another
being cross
which character the
argues that the
The State furthеr
examined has testified....
proper, in order to
questioning was
line of
State,
Tex.R.App.Pro. Given the were in existence that case, facts and circumstances of this concerning impeachment on collateral *4 say beyond cannot a reasonable doubt generally matter came to be. See Ochoa jury’s the error made no contribution to the finding appellant guilty of the offense оf codification, however, aggravated sexual assault. specific addressing rule this there judgments of the trial court and the regarding im- general common law rule court of are reversed and the cause peachment on a collateral matter or its is remanded to the trial court for exception. My attendant view is that Rule opinion. not inconsistent with this viability 607 maintains the of this provides and thе vehicle rule J., WHITE, concurs in the result. impeachment. for such McCORMICK, P.J., and W.C. DAVIS provides: specifically Rule 607 BERCHELMANN, JJ., dissent. May Impeach Rule 607. Who STURNS, J., participating. not credibility of a witness be at- party, including by any taсked MILLER, Justice, concurring. calling him. agree majority opinion’s I with the hold- long correcting a false As as a improperly questioned that the State _R_about by a I al- made witness would during her use of heroin pursuant party, low opin- majority its cross-examination. The purposes specific impeachment utilize for correctly points ion also out that Rule Al- the witness’s conduct. instance of 608(b),Tex.R.Crim.Evid., does nоt allow the though expressly does not ad- Rule 607 specific instances of conduct I exception, dress this do not believe impeaching credibility of a the Rules of Criminal Evi- enactment of ceрt as for Rule 609 which was dence abolished it. inapplicable in case. this comments, impact join majority I I to address the With these write of the new rules of criminal evidence page two
our common law rules. On Judge Teague majority opinion, long-standing general rule that
notes our impeach a
party is not entitled to matter, and the
on a collateral a witness to this rule that when impression concerning a mat- a false
leaves credibility, the relating to his or her
ter im- party may by the cases cited
pression. As evidenced opinion, majority
in the years exception were created
and its Rules of Criminal adoption
Evidence.