*1 by failing jury leads the to inform them vote either YOUNG,
that one “no” Roosevelt special require issues would trial court sentence to life rather than Appellant argues death. that the statute given pursuant
and the instructions
thereto
jury
lead the
to believe that ten “no” votes
required
are
to direct a life sentence.
Appeals
of Criminal
decision in
This court’s
Davis v.
cert,
(Tex.Cr.App.1989),
L.Ed.2d 520 on Davis,
In claimed that
jury should have been informed that their agree special
failure to on issues imposition
would result life Davis, 782
sentence. S.W.2d at
appellant further claimed that the failure jury 'deprive[ so inform the “works ] understanding jurors of sufficient ” proceedings,’ resulting their deliberation process deprivation. a due We held Id. appellant’s with-
that the contentions were merit, recognizing
out capital jury in a murder case is
[t]he answering questions
responsible for life
result which will determine the Any
death of an individual. information given jury may inter-
that is be
preted by relieving responsibili- it as
ty upon an infraction considered finding
jury’s fact function. omitted). (citations
Id. facts or
Appellant fails un-
circumstances which render the statute Appellant to him. fails to
constitutional as
give any reason to overturn we
our decision Davis. point of error number and is
seven is without merit overruled.
Id. error,
Finding reversible we affirm judgment of the trial court. Davis, holding in Although directly point, appellant’s Consistent with our brief Davis. jury should not informed only authority held that a cite cited Justus Davis. The Commonwealth, be unanimous of it’s failure to 220 Va. the effect appellant is Justus Justus, special S.E.2d answering issues. Justus is note S.E.2d authority among as in our cases cited *2 Jr., West, Reaves, appel- for M.
Walter lant. Gartner, Jr., Atty., Former Dist.
Paul E. Former Asst. Dist. Tanya Dahoney, S. Segrest, Atty., Dist. Atty., John W. Waco, West, Atty., Asst. Dist. Thomas C. Huttash, Austin, for Atty., State’s Robert the State. APPELLANT’S PETITION
OPINION ON REVIEW FOR DISCRETIONARY CLINTON, Judge. granted review to determine whether requires a defendant to
Tex.R.Cr.Evid. 611 appel- belonging records late court business testifying by an adverse prior and used refresh her recollection where denied his to exam- the trial court produce the records be- ine and motion to witness, directing fore counsel with instead that defense Young v. crossexamination. See — (Tex.App question 1990).1 important This is an Waco her late hus- A. No. Q. 1. The witness was coowner with your Bar, anything about records Was there bookkeeper Billy's band of being any work hired to do a Roosevelt charged burglarizing. place Billy’s? trial, testi- Her husband died before so it is her A. No. gives mony rise to on direct examination that S.F. 83-84 issue, direct examination counsel After close of you my request Q. have an occasion At requested of the records that she defendant "all your regarding the area of to review books purposes of her reviewed March 1988? around following generating dia- impeachment,” A. Yes. logue: being any Q. work Was there construction them, Your I don’t have [PROSECUTOR]: Billy's on March 1988? done any. A. I don’t recall any? You don’t have COURT: that, you Q. books; did check the In addition to I her to review asked bring that correct? them to Court didn’t ask her to I A. I did. her. Honor, if she reviewed Q. sort of Are there invoices [DEFENSE]: memory prior to reflecting being refresh her payment done those records to work here, to have I’m entitled time she came on March 1988? witness, law, i.e., evidence, ine the and to introduce in evi- of state a new portions which needs to settled this Court. dence those which relate * * *2 200(c)(2). testimony of the witness.” Tex.R.App.Pro., Rule Formerly, guidance from taking text *3 deny trial court thus erred in writers, jurisdictions courts of other and ing appellant’s request for and motion to (model 611), Fed.R.Evid. 612 for our Rule produce “records she reviewed to her upheld the court that a trial order testimony impeachment.” purposes of psychiatric testifying under similar witness State, supra. compare See and v. Ballew to provide for the defense circumstances prosecution not the Since the claim of and prosecutor the his notes interviews not contain “matters related of examination Ballew v. defendant. subject testimony,” of the the re matter 237, (Tex.Cr.App. State, 242 640 S.W.2d quirements of Rule 611 for an camera 1980) (Opinion Rehearing). The Court triggered. not examination et cetera were right demand wrote in terms of to “[t]he 648, State, 646, See Marsh v. 749 S.W.2d at id., inspection notes,” of at and the * 1988), (Tex.App. PDR re n. — Amarillo opinion the to that concurrence read part fused. the latter of inspect “the to the mem entitled State was operative, never and the court 611 became id., orandum,” ex 244. Ballew at Thus faulting appellant appeals erred in of rule, jury” “use the see tended the before the to to utilize latter State, e.g., 478 v. S.W.2d White that which the (distinguishing (Tex.Cr.App.1972) 509-512 examined, excised or with trial court never Rule”), and socalled “Gaskin that extension Young See v. held under Rule 611. Ibid. Goode, Well- incorporated into Rule State, at 340. supra, Sharlot, Rules Evidence born & Texas of 612.3, 33 Texas and Criminal Civil § invoked Rule When 459-461 Practice produc to have the records he was entitled 611 also is cast terms of entitle- pur inspection his counsel for ed for ment, viz: of the witness there poses not the prosecution did have writing refresh on. That the “If a witness uses a bring the witness purpose testifying records or did not have memory for of his the whatsoever. party is of moment testifying, an them court adverse ... before obliged to the judge honor writing produced at The to have the entitled it, requir- motion of hearing, inspect to cross-exam- the remaining part cer- Rule 611 contains to cross her with. I move at them examine copy provided provisions, that with a this time I be tain remedial writing the contains "... it is claimed that If essentially I think what she subject matter of not related to the matters records, to is the absence testified testimony the the court shall examine camera, any portion not so writing excise objection. Pro- COURT: I overrule testimony, subject matter related to the examination. ceed with delivery of the remainder and order S.F. 85-86. Any portion party thereto. withheld entitled 611; appeal appellant invoked On direct objections made shall be over "appellant position that the State took the appellate in the event court available to any appeal. any complaint point when on this he waived produced writing requirements is not of the State If fulfill failed to discovery 39.14, V.A.C.C.P.].” order under this statute to an [Article delivered rule, original justice the court On submission order shall make the court to com- of error failure prosecution overruled ply except requires, when the 39.14, addressing supra, Article without comply, shall be the order elects not to State, supra, On v. Rule rehearing or, its striking if held, however, the court jus- interests of determines that the discretion failed declaring require, mistrial." so tice “preserve[] not because he did (All throughout emphasis here and "any appellate court” available to the ma[k]e indicated.) is mine unless otherwise objec- over portion withheld records] [of Id., at 340. tions].” ing produce them before BUTLER,
directing appellant with crossex- David Lee amination. White v. v. (failure compel inspection is reversible error); State, cf. Salazar v. (Tex.Cr.App.1990); see 648; Marsh contra: Appeals of Court of Criminal at 292- (Tex.App. 1990), PDR re- —Dallas fused.3 *4 the trial court erred refusing directing to do so before crossexamination, appellant overruling
and the court of erred in rehearing. motion for Whether
the trial error is is for harmless that court
to decide in the instance. first judgment we vacate the
the court of and remand the cause analysis
to that court for a harmless 81(b)(2). Tex.R.App.Pro., Rule J.,
MILLER, concurs result.
McCORMICK, P.J., and WHITE and
BENAVIDES, JJ., dissent.
CAMPBELL, J., dissents, believing that appeals correctly
the court of decided the grant
case and that the decision to
petition discretionary im- review was
provident in the first instance. Tex.R.App.Pro. Tex.R.App.Pro. quired State under error” under contends that But, 50(d) bill). (c), (presumably the burden is on "to see that a once a “formal” presented sufficient record is to show error re- appellant requested production and moved for primarily quiring reversal." It relies on Haw- which he was entitled under records to appears to kins v. notwithstanding 611, only access be denied to them integrality procedural court, complete and thus the error generality in Rule 52(a). See Marsh 50(d) controlling. turn Hawkins in cites Gar- order to 649. To (Tex.App.— cia v. that the court erred” an "demonstrate PDR, 1988), no case El Paso but that deals unilaterally acquire somehow must nonetheless alleged entirely inapposite of an an situation ap- for inclusion in them from the witness order; pretrial discovery of a violation way exception is to pellate of a bill record implicated. put would is not at all impossible impose practically task that perfect on an “to bill burden require. law or writings] in the record as is re- [the include