Brooks v. State

893 S.W.2d 604, 1994 Tex. App. LEXIS 3147, 1994 WL 707221
CourtCourt of Appeals of Texas
DecidedDecember 21, 1994
DocketNo. 2-91-305-CR
StatusPublished

This text of 893 S.W.2d 604 (Brooks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. State, 893 S.W.2d 604, 1994 Tex. App. LEXIS 3147, 1994 WL 707221 (Tex. Ct. App. 1994).

Opinion

OPINION ON REMAND

HILL, Chief Justice.

Edward Dee Brooks was convicted by a jury of the offense of aggravated robbery for the robbery of a teller at a savings and loan association. See TexPenal Code Ann. § 29.03 (Vernon 1994).1 The teller, Jeanice Madewell, testified that Brooks robbed her at gunpoint. The jury assessed punishment, enhanced by two prior felony convictions, at ninety-nine years’ imprisonment in the Texas Department of Corrections (now known as the Institutional Division of the Texas Department of Criminal Justice). This court affirmed the conviction in an unpublished opinion. On remand from the court of criminal appeals we reconsider Brooks’ sixth and eighth points of error.

There is an ambiguity in the opinion on appellant’s petition for discretionary review which requires this court to determine the scope of the remand. The opinion states:

In part of Appellant’s second ground for review he contends the Court of Appeals did not address his argument in his fourth point of error that under the Gaskin2 rule he was entitled to a transcription of a witness’ testimony given at a previous trial.

The ambiguity lies in the fact that the part of the second ground for review which addresses the denial of a transcription of testimony refers to Brooks’ sixth point of error.

The arguments of the fourth point of error are raised in the third ground for review. While this point of error does raise a Gaskin argument, it concerns the failure of the State to produce a statement made by a witness prior to any trial.

We review the sixth point of error instead of the fourth because the court of criminal appeals directs us towards the question involving transcription of prior testimony at a trial. The opinion further states that “Appellant’s remaining grounds of error, including that part of ground two not involving the [607]*607transcription of previous testimony, are refused.” This language controls the mislabell-ing of the points of error.

Brooks raises two points of error on remand. In his sixth point of error he argues that the trial court erred in denying him transcripts of a witness’s testimony from an earlier trial. In his eighth point of error Brooks argues that the court erred in admitting certain medical records.

We reverse and remand for new trial because the court erred in denying his request for a transcription of the prior testimony.

SIXTH POINT OF ERROR

Brooks’ sixth point of error asserts that the trial court committed fundamental error in denying his request that the written testimony of the eyewitness, Jeaniee Madewell, given in the trial of co-defendant Johnny Zurfluh be made available to him. After Madewell testified on direct examination, Brooks’ attorney requested a transcript of Madewell’s testimony from the Zurfluh trial at the conclusion of Madewell’s testimony in the case at bar. Brooks contends that the prior statements made by Ms. Madewell under oath in the Zurfluh trial were discoverable under the Gaskin rule, and should be furnished to the defendant. The request was denied.

Brooks presents two theories based on his Gaskin request. The first theory is that the trial court committed fundamental error in denying the request for a transcript because the Gaskin request satisfied the “particularized, specific need” requirement for the transcription of the trial of a third party. The second is that the failure of the trial court to order production of the statements" under Gaskin is itself fundamental error.

Addressing the first theory we turn to the original opinion by this court. It is well settled that an indigent defendant is entitled upon timely request to be furnished without cost, for use at a subsequent trial, a transcription of his earlier mistrial, if it is needed for an effective defense. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, 403 (1971); Billie v. State, 605 S.W.2d 558, 560-61 (Tex.Crim.App. 1980). In such cases, the accused is presumed to have a need for the transcription of the court reporter’s notes from his first trial. Armour v. State, 606 S.W.2d 891, 894 (Tex.CrimApp. [Panel Op.] 1980). Furthermore, the accused does not bear the burden of showing a particularized need for the transcript, nor of showing that the alternatives to acquire the same evidence are inadequate. Id.

The court of criminal appeals has refused to extend the holdings of Britt and its Texas progeny to cases involving an appellant’s request for the transcription of the trial of a third party. See McKibbon v. State, 749 S.W.2d 83, 86 (Tex.Crim.App.), cert. denied, 488 U.S. 859, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988). The McKibbon court held that in the absence of a showing of some particularized need, the presumption of need should not be applied to transcriptions of third party trials. Id. Rather, the accused shall be required to demonstrate a specific need for the transcript. Id. Moreover, the McKibbon court found that a simple request for the transcript, without more, is insufficient to show a “particularized, specific need.” Id. at 85.

Brooks made a timely request for the transcript of Madewell’s testimony even though his trial had started. Ordinarily a request for transcription made after the start of the trial would not be timely. See Hutchinson v. State, 754 S.W.2d 746, 747 (Tex.App.—Houston [14th Dist.] 1988, no pet.). The Hutchinson opinion states that the request was made for a “transcript of the proceedings of the first trial in order to effectively cross-examine the state witnesses.” Id. at 746. However, in the context of a request to use the prior testimony of the specific witness for Gaskin cross-examination, a timely request can be made after the witness has testified. TEX.R.CRIM. Evid. 614; see Billie, 605 S.W.2d at 561-62. Furthermore, as in Billie, Brooks also made a motion for discovery of a transcription of Madewell’s testimony prior to the trial. Billie, 605 S.W.2d at 559.

Brooks showed a particularized need for the transcription. In order to obtain a transcription of testimony from the [608]*608trial of a third party Brooks must show a particularized, specific need. McKibbon, 749 S.W.2d at 85. Brooks’ attorney requested the transcription during a voir dire of Made-well in an attempt to impeach her. Immediately prior to the inquiries about the Zurfluh trial Brooks’ attorney completed questioning Madewell about her testimony in the Pierce trial, for which he had a transcription of her testimony. Brooks showed he needed access to a limited portion of the transcript of the Zurfluh trial in order to continue the cross-examination and impeachment of the witness. This a sufficiently particularized need to allow access to that part of the Zurfluh transcript containing Madewell’s testimony.

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Related

Britt v. North Carolina
404 U.S. 226 (Supreme Court, 1971)
Billie v. State
605 S.W.2d 558 (Court of Criminal Appeals of Texas, 1980)
Jenkins v. State
912 S.W.2d 793 (Court of Criminal Appeals of Texas, 1995)
Armour v. State
606 S.W.2d 891 (Court of Criminal Appeals of Texas, 1980)
White v. State
823 S.W.2d 296 (Court of Criminal Appeals of Texas, 1992)
Pierce v. State
777 S.W.2d 399 (Court of Criminal Appeals of Texas, 1989)
Gaskin v. State
353 S.W.2d 467 (Court of Criminal Appeals of Texas, 1961)
White v. State
496 S.W.2d 642 (Court of Criminal Appeals of Texas, 1973)
Cullen v. State
719 S.W.2d 195 (Court of Criminal Appeals of Texas, 1986)
Mitchell v. State
750 S.W.2d 378 (Court of Appeals of Texas, 1988)
Zanders v. State
480 S.W.2d 708 (Court of Criminal Appeals of Texas, 1972)
McKibbon v. State
749 S.W.2d 83 (Court of Criminal Appeals of Texas, 1988)
Hutchinson v. State
754 S.W.2d 746 (Court of Appeals of Texas, 1988)
Washington v. State
856 S.W.2d 184 (Court of Criminal Appeals of Texas, 1993)
Johnson v. Court of Appeal
421 U.S. 951 (W.D. Pennsylvania, 1975)

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Bluebook (online)
893 S.W.2d 604, 1994 Tex. App. LEXIS 3147, 1994 WL 707221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-state-texapp-1994.