Enos v. State

909 S.W.2d 293, 1995 Tex. App. LEXIS 2549, 1995 WL 613977
CourtCourt of Appeals of Texas
DecidedOctober 19, 1995
Docket2-92-100-CR
StatusPublished
Cited by7 cases

This text of 909 S.W.2d 293 (Enos 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
Enos v. State, 909 S.W.2d 293, 1995 Tex. App. LEXIS 2549, 1995 WL 613977 (Tex. Ct. App. 1995).

Opinions

OPINION ON REHEARING

LIVINGSTON, Justice.

This court withdraws its opinions and judgment of June 22, 1995 and substitutes the following in its place. Simultaneously, this court has considered the appellant’s motion for rehearing en banc and such motion for rehearing en banc is denied and hereby overruled. The only revision to the original opinions is the addition of Footnote One to the majority opinion which addresses the dissenting opinion’s discussion of the majority’s harm analysis.

[295]*295Dennis Wayne Enos (“appellant”) pled guilty to one count of aggravated robbery with a deadly weapon and true to an enhancement paragraph. A jury assessed punishment of seventy-five years’ imprisonment. On appeal this court affirmed appellant’s sentence. Enos v. State, 859 S.W.2d 594 (Tex.App.—Fort Worth 1993), rev’d, 889 S.W.2d 303 (Tex.Crim.App.1994). The Texas Court of Criminal Appeals reversed and remanded the case to this court under appellant’s fourth and fifth points of error. Generally, points of error four and five address the trial court’s refusal to allow appellant to examine the victim impact statement of the complainant after she testified. This court previously overruled both points of error, holding that a Gaskin analysis was not applicable in light of article 56.03(g), “Victim Impact Statements,” of the Texas Code of Criminal Procedure. The Court of Criminal Appeals, however, concluded that article 56.03(g) “by its plain language, concerns only the discoverability of victim impact statements before a victim testifies, where as the Gaskin rule concerns the discoverability of statements after a witness testifies on direct examination.” Enos, 889 S.W.2d at 305. Accordingly, we must determine whether the victim impact statement was discoverable under the Gaskin rule. See Gaskin v. State, 172 Tex.Crim. 7, 353 S.W.2d 467, 469 (1961). We affirm because while the victim impact statement was discoverable under Gaskin, the error was harmless beyond a reasonable doubt.

The Gaskin rule provides that once a witness has testified for the prosecution, the defendant is entitled to inspect any written statements made by the witness prior to testifying. Id. at 469. The purpose of this rule is to assist the defendant in cross-examining the witness. Id. The Gaskin rule, however, is only applicable to a witness’ statements that relate to the subject matter of the witness’ testimony. Williams v. State, 542 S.W.2d 131, 138 (Tex.Crim.App.1976).

Here, Shirley Mimms, the complainant, testified about the effects the hold-up at the bank had on her. The State argues that the witness’ testimony related to the short-term effects of the robbery while the victim impact statement related to long-term effects. We do not find this hypertechnical argument persuasive, however. The purpose of the Gaskin rule is to better enable the defendant to cross-examine and possibly impeach a witness. Enos, 889 S.W.2d at 305. The testimony of the witness regarding the effects of the robbery was introduced during punishment to persuade the jury to give a harsher sentence based on the facts surrounding the crime. Given this motive, the long-term effects are related to the short-term effects that the witness testified about. Accordingly, we conclude it was error for the trial judge not to allow the appellant to review the victim impact statement following the complainant’s testimony on direct examination.

Having found error, we must determine whether the error requires reversal. Harris v. State, 790 S.W.2d 568, 584 (Tex.Crim.App.1989). We must reverse the judg ment under review unless we determine “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Tex.R.App.P. 81(b)(2). Our harmless error analysis must focus upon the error rather than the propriety of the outcome of the trial, trace its probable impact upon the jury, and determine whether it contributed to the conviction or punishment. Harris, 790 S.W.2d at 585-87. Review concentrates on the fairness of the trial and the integrity of the process. Id. We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Id. at 587. This requires an evaluation of the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution. Id. at 586.

The Source and Nature of the Error

The error in this case was the trial court’s determination that the victim impact statement was not discoverable by appellant. As is apparent from the decision of the Texas Court of Criminal Appeals in this ease, the interaction between victim impact state-[296]*296merits, article 56.03(g) of the Texas Code of Criminal Procedure, and the Gaskin rule had not been addressed previously. Based on this factual setting, we cannot conclude the State was responsible for the error in this case or was attempting to taint the outcome of the trial by refusing to produce the statement.

Emphasis on the Error by the State

Looking at the trial and the State’s use of the testimony during jury argument, we find the State did refer to the complainant’s testimony during jury argument:

And one thing I want to leave you with before I get away: There are victims in this case. One is Shirley Mimms, but by no stretch of the imagination do not disbelieve that the Enos family, Mr. and Mrs. Enos, are not victims of the life their son has chosen to lead.
[[Image here]]
And ask yourself this: Does his plea of guilty in any way lessen the terror that Shirley Mimms experienced when she was looking down the barrel of a semi-automatic pistol that this Defendant was holding on her? That doesn’t make any difference. Doesn’t make any difference. The plea of guilty is not worth one ounce of mitigation.
[[Image here]]
Now let’s talk about punishment.
In contrast, you can and should punish this Defendant very severely for what he’s done. He’s a four-time convicted felon; he’s an armed robber; he’s a man who held a woman’s life at gunpoint and made her think that her next breath might be her last. When he left that bank, she collapsed in a heap on the floor, sobbing from hysterics.
This is a man who deserves to be punished for life. Plain and simple.

Looking at the jury argument, we must conclude that the State reiterated Mimms’ testimony regarding the offense, and such a focus emphasized the error of not allowing appellant an opportunity to review Mimms’ statement before cross-examining her.

Probable Collateral Implications of the Error

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Enos v. State
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Cite This Page — Counsel Stack

Bluebook (online)
909 S.W.2d 293, 1995 Tex. App. LEXIS 2549, 1995 WL 613977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enos-v-state-texapp-1995.