Jenkins v. State

OPINION

Appellant was convicted of capital murder pursuant to Texas Penal Code Section 19.03(a)(2). The jury made affirmative findings on the two special issues submitted to it and the trial court imposed the sentence of death. This case comes to us on direct appeal. Tex.Code Crim.Proc.Ann. art. 37.071 § 2(h). We will reverse based upon our disposition of appellant’s points of error seventeen, eighteen and nineteen,1 and address *799point of error thirteen, challenging the sufficiency of the evidence.

In point of error thirteen appellant challenges the sufficiency of the evidence to sustain an affirmative finding on the second special issue, whether there is “a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society[.]” A discussion of the facts relevant to this issue is necessary. The evidence at trial established that in the early afternoon of August 29, 1988, appellant and accomplice Eugene Hart entered the Golden Nugget Pawn Shop in Harris County, Texas, shot the two clerks on duty, stole jewelry and money and fled on foot. Evidence connecting appellant and Hart to the scene led to their arrests the next day. After his arrest, appellant directed police officers to the locations where he had thrown the pistol used in committing the offense and the spent shells from the pistol. In a written confession appellant confessed that he was the triggerman in both shootings. Appellant further stated that he had initiated the plan to rob the pawn shop and had solicited Hart’s involvement. Appellant stated that “[Hart] and I had already made up our minds that when we jacked (Robbed) the place we were going to have to kill whoever was there because we did not want to be identified.”

At punishment, the State introduced evidence of appellant’s two prior burglary convictions and appellant’s military records reflecting his discharge “Under Other Than Honorable Conditions” due to frequent misconduct. Appellant’s prison records were also introduced, evidencing repeated reports of misconduct, primarily relating to appellant’s refusal to work. In addition, psychologist, Dr. Michael Field, testified for the State that he had diagnosed appellant as having an antisocial personality disorder. Field testified that appellant was not subject to rehabilitation and would constitute a continuing threat to society. While in prison appellant confided in a fellow inmate, James Jackson, that he planned to “eliminate” his cohort Hart, who was also in prison, by poison. Jackson testified that appellant wanted him to contact a kitchen worker who would be able to facilitate appellant’s plan. Appellant also told Jackson that he had wanted to kill Hart immediately after committing the offense, but had not had the opportunity. Appellant argues that while his military and prison records were not exemplary, the infractions were of a passive nature. Appellant further contends that the State’s psychological evidence was faulty because it was based upon a twenty minute interview conducted while appellant was incarcerated some six years prior to the commission of the instant offense. Appellant also introduced letters and poems that he had written for the purpose of showing that he was remorseful.

In reviewing the sufficiency of the evidence to sustain the jury’s affirmative finding on a special issue, we consider whether that evidence, viewed in the light most favorable to the verdict, would lead any rational trier of fact to the same conclusion beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Fuller v. State, 827 S.W.2d 919, 934 (Tex.Crim.App. 1992), cert, filed (June 23,1992). In reaching a verdict on the special issues, the jury is allowed to consider evidence introduced at both stages of the trial. Miniel v. State, 831 S.W.2d 310, 322 (Tex.Crim.App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). The circumstances of the offense alone, if sufficiently heinous, can suffice to support the jury’s verdict. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987); Johnson v. State, 853 S.W.2d 527, 531 (Tex.Crim.App.1992). In addition to the crime itself, the jury may consider factors such as whether the accused was acting in concert with others, his state of mind at the time, the calculated nature of the acts culminating in the offense, forethought and deliberation preceding the murder, the accused’s age, prior criminal history, psychiatric evidence and character evidence. See, e.g., Keeton, 724 S.W.2d at 61; Vuong v. State, 830 S.W.2d 929, 934-35 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992).

*800Viewed in the light most favorable to the decision made by the jury, we hold the evidence sufficient to support the jury’s affirmative finding on the second special issue beyond reasonable doubt. First v. State, 846 S.W.2d 836 (Tex.Crim.App.1992). The offense, while not sufficiently heinous alone to justify an affirmative finding on the second issue, is probative of appellant’s future conduct. The robbery and the murders were planned with forethought and put into calculated operation. Appellant admittedly planned, prior to committing the offense, to kill anyone who might be in the store in order to avoid an identification. Both unarmed clerks were shot at close range and without provocation as part of appellant’s pre-devised scheme. These circumstances, together the other evidence elicited by the State at the punishment phase of trial, including evidence of appellant’s plans to kill his accomplice, appellant’s prior criminal history, poor military and prison records and the psychologist’s testimony that appellant could not be rehabilitated support the jury’s affirmative finding on the second special issue. Point of error thirteen is overruled.

In points of error seventeen, eighteen and nineteen, appellant complains of the trial court’s failure to compel a State’s witness to produce certain reports which related to his testimony. Appellant claims that the trial court’s actions violated Texas Rule of Criminal Evidence 614 and that appellant was thereby denied his right of confrontation and due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 19 of the Texas Constitution.

During the punishment phase of trial Larry Bitter, a narcotics investigator with the Texas Department of Corrections (TDC), testified as a State’s witness about the importation of drugs into TDC and their widespread use by inmates.2 Following are excerpts of that testimony:

Q. [Prosecutor] "What does your job consist of?

A. [Bitter] We’re responsible for the investigation of allegations of narcotics traffic primarily within the prison system.

Q. Are there narcotics found inside TDC?

[objection omitted]

A. Yes, sir, there are.

[objection omitted]

Q. Are narcotics available to inmates of the Texas Department of Corrections? [objection omitted]

A. Yes, sir.

* * * * * *

Q. Have you found drugs in possession of any inmates at the Department of Corrections?

[objection omitted]

A. Yes, sir, we have.

Q. What type of drugs have you found on inmates in the Texas Department of Corrections?

A. Everything. Heroin, marijuana, cocaine, LSD; all drugs that are available in the free world we have found on inmates.

Q. Do you know how those drugs get in?

A. Yes, sir. There are a variety of different ways.

Q. ... What various ways have you found drugs get into the Texas Department of Corrections?

[objection omitted]

A. Through officers and employees, civilians who come to visit on weekends, through the mail.... there are a series of different ways to get it in through the mail. We’ve had LSD that has been *801placed behind a postage stamp on an envelope. We have seen it coming in that way.

Q. Are you talking about small amounts, or what is the largest amount of drugs you’ve found on an inmate in the Texas Department of Corrections?

A. We have seized in excess of a half a pound of marijuana. We have seized in excess of an ounce of cocaine.

Q. How do they ingest the drugs that are ingested? Do they use syringes or what?

A. Each unit houses an infirmary. In the course of business, the infirmary has syringes and hypodermic needles, and because the way the prison is run, inmates are allowed access to nearly every portion of the prison. They are able to sometimes steal syringes, and sometimes officers will bring in syringes as part of what he does for inmates. So they dig them out of the trash cans; as medical personnel throw them away, they use syringes.

sjj s}:

Q. Would the fact that a person may have been to the penitentiary on at least two occasions, would that person have a better understanding of how to obtain drugs in the penitentiary?

[objection omitted]

A. Yes, sir, he would.

Q. The fact that a person is confined to the Texas Department of Corrections, would that automatically cut the availability of any controlled substance or dope to him or her?

A. No, sir.

On cross-examination Bitter stated that as part of his job he made reports and findings of his investigations of drug importation into the TDC. Thereupon, appellant requested that he be given those reports for purposes of further cross-examination pursuant to Rule of Criminal Evidence 614.3 The trial judge ordered the production of reports that specifically concerned appellant, but denied appellant’s request with respect to any other report. Appellant objected that the court’s ruling was in violation of appellant’s confrontation and due process rights, and was contrary to Rule 614.4 Appellant’s objections were overruled. Appellant requested that the reports be produced for purposes of the record on appeal. This request was denied.

Texas Rule of Criminal Evidence 614(a) provides that:

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for *802the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

TEX.R.CRIM.EVID. 614(a). Rule 614 derives from the common law rule set forth in our decision in Gaskin v. State, 172 Tex. Crim. 7, 353 S.W.2d 467 (App.1961).5 HU-LEN D. WENDORF, ET AL, TEXAS RULES OF EVIDENCE MANUAL at VI-106 (3rd ed. 1991). Because we have never before interpreted the scope and application of Rule 614, it is appropriate to look to our interpretation of the Gaskin rule for guidance. Moreover, as Rule 614 is substantively similar to the federal Jeneks Act, 18 U.S.C. § 3500, federal caselaw may also be helpful.6

Material subject to Rule 614 must “relate[ ] to the subject matter concerning which the witness has testified.” TEX.R.CRIM. EVID. 614(a). The State argues that appellant’s request far exceeds the scope of material discoverable under the Rule.7 A recent federal decision, United States v. Roark, 924 F.2d 1426 (8th Cir.1991), which applied the federal rule to facts comparable to those here is persuasive.

In Roark, the defendant, a member of the Hells Angels Motorcycle Club, was indicted for various drug-related offenses. Id. at 1427. The government called DEA agent Heald, who had no involvement in the offense or with the defendant, to testify as an expert on the Hells Angels organization. Id. at 1430. Heald testified that he had visited at least one hundred of the Hells Angels’ methamphetamine labs and had written reports about the illegal drug activities of the Hells Angels, including operation of the labs. The government also called Anthony Tait, an agent who had worked undercover as a Hells Angel. Tait testified that he had made hundreds of tapes in relation to his activities with the Hells Angels, including the defen*803dant’s particular chapter of the organization. The defendant requested production of Heald’s reports and Tait’s tapes pursuant to the Jeneks Act. Id. at 1431. The district court refused to compel production of any of the documents requested relating to Heald’s or Tait’s testimony sustaining the government’s objection that the material sought was too voluminous.8 Id. at 1431. However, at the close of trial, the district court instructed the jury that the testimony of both Heald and Tait was struck from the record and that they were not to consider that testimony as it “in no way proves that defendant is guilty of the crimes with which he is charged.” Id. at 1432.

Addressing the district court’s concerns about the volume of the material sought, the Court of Appeals for the Eighth Circuit noted that the Jeneks Act did not restrict production of relevant material simply because the material is or might be voluminous. Id. at 1431. The court further stated that when the government challenges the relevancy of requested material, the trial judge has an affirmative duty to inspect those materials in camera. The court held that the failure to compel production of the requested materials either to appellant or to the court for an in camera inspection amounted to reversible error and was not cured by the jury instruction to disregard the witnesses’ testimony. Id. at 1432-34.

The testimony of Bitter and the reports sought in the instant case are remarkably similar in nature to the testimony of Heald and Tait and the material sought in Roark. In Roark, Heald had no involvement in the case or with the defendant. Heald’s testimony pertained to the Hell’s Angels in general and to offenses committed by the Hell’s Angels which did not involve the defendant. The reports sought described offenses which did not involve the defendant. Although some of Tait’s testimony pertained to activities of the Hell’s Angels’ chapter to which the defendant belonged, most of his testimony related to matters which did not involve the defendant. In the instant case, Bitter’s testimony pertained to drug offenses in the TDC in general. None of Bitter’s testimony indicated that he had any involvement in the investigation of the instant offense or with appellant, apart from testifying in appellant’s trial. As in Roark, it appears from the record here that the reports sought described offenses which did not involve appellant.9 We hold that the trial court erred in refusing to compel production of the reports, at least in order to conduct an in camera inspection as to their relevance to Bitter’s testimony. See Roark.

The State argues that production of the reports should not be compelled because the task “would be extremely onerous” and “herculean”. This argument is without merit as Rule 614 does not exclude production of materials that are or might be voluminous. See id. at 1431. Although the State further argues that appellant’s request exceeds the scope of Rule 614, the Rule is extremely broad, providing that the trial court “shall” compel production of “any statement ... that relates to the subject matter concerning which the witness has testified.” (emphasis added). The State cites no authority in support of its contention that the Rule was not intended to extend to reports of the type sought by appellant.

The State also argues that the reports were not “statements” within the meaning of Rule 614 and were not subject to production because they were not in Bitter’s “possession”.10 We reject these contentions. Bitter’s testimony was that he personally prepared the reports based upon his investigatory findings. These reports were state*804ments under Rule 614.11 See, e.g., Campos v. State, 468 S.W.2d 81, 83 (Tex.Crim.App. 1971) (police officers’ offense reports are discoverable statements under Gaskin); Darrington v. State, 493 S.W.2d 244, 245 (Tex.Crim.App.1973) (officer’s offense report was “statement” subject to Gaskin rule); 22 TEX.JUR.3d Criminal Law § 2446 (1982) (describing Gaskin Rule as applicable where state’s witness has “made a report or given a statement”); see also United States v. Welch, 810 F.2d 485, 490 (5th Cir.), cert. denied 484 U.S. 955, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987) (investigation reports can be “statement” under Jeneks Act); Lewis v. United States, 340 F.2d 678, 682 (8th Cir.1965) (well-settled that notes and reports made in course of criminal investigation are “statements” under Jeneks).

As to the issue of possession, the State’s interpretation is overly narrow, essentially requiring physical possession in the courtroom. We think a more reasonable view is that a statement is in the “possession” of a witness if it is within his control or is readily accessible to him. See United States v. Heath, 580 F.2d 1011, 1018, 1018 n. 1 (10th Cir.1978), cert. denied 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979) (where there was close cooperation between local police and federal prosecutor, federal prosecutor cannot “stand on technicality and say that he does not have actual possession” of the statement held by local authorities); Augenblick v. United States, 377 F.2d. 586, 597-98, 180 Ct.Cl. 131 (1967) (“statement” under Jeneks Act “need not be within the physical control of the prosecution to be ‘in possession’), rev’d on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); see also United States v. Durham, 941 F.2d 858, 861 n. 3 (1991) (where federal authorities did not participate in a joint effort with local authorities, federal government did not have “possession” of statements taken by local authorities). Although the record is not well-developed as to Bitter’s control over or access to the reports at issue, as a narcotics investigator for TDC, it is reasonable to assume that Bitter was in control of and had access to reports prepared by him in the exercise of his investigative duties. Moreover, we think it reasonable that when a defendant requests the production of a statement under Rule 614, the State bears the burden, as the party contesting production, to show why the statement should not or cannot be produced. See United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 533-34, 21 L.Ed.2d 537 (1969) (government properly bears burden of explaining why statements under Jeneks Act could not be produced); Moore v. United States, 353 A.2d 16, 19 (D.C.1974) (under Jeneks Act burden of explaining why material can’t be produced is on government). Here, the State failed to show that the witness did not have control of or access to the reports. In the absence of evidence to the contrary, we hold the reports were in Bitter’s “possession” within the meaning of Rule 614.

Violation of Rule 614 results in reversal unless the error is shown to be harmless. See TEX.R.APP.PROC. 81(b)(2). This principle applied to violations of the common law Gaskin rule as well. See, e.g., Pinson v. State, 598 S.W.2d 299, 300-01 (Tex.Crim.App. 1980); Hoffman v. State, 514 S.W.2d 248, 253 n. 5 (Tex.Crim.App.1974); Campos v. State, 468 S.W.2d 81, 84 (Tex.Crim.App.1971). Under Gaskin, we recognized that in determining harm we must consider whether the accused was denied effective cross-examination or possible impeachment due to the denial of the reports. Cullen v. State, 719 S.W.2d 195, 196-98 (Tex.Crim.App.1986). In order to make such a determination, the appellate court must review the documents in question. Id. However, where the defendant is denied the opportunity to make the statements available for the appellate record so that harm can be determined, harm is presumed. See, e.g., Zanders v. State, 480 S.W.2d 708, 710-11 (Tex.Crim.App.1972), cert. denied 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 106 (1975); White v. State, 496 S.W.2d 642, 646 (Tex.Crim.App.1973). Here, appellant requested but was denied the opportunity to make the reports part of the record for ap*805peal. Because we do not have the reports before us to review, we cannot conclude beyond a reasonable doubt that the error made no contribution to the verdict.

Accordingly, the judgment of the trial court is reversed and this cause is remanded to the trial court.