Gaskin v. State

353 S.W.2d 467, 172 Tex. Crim. 7, 1961 Tex. Crim. App. LEXIS 3539

Opinions

MORRISON, Judge.

The offense is possession of marijuana; the punishment, two years.

In view of our disposition of this case, a recitation of the facts will not be necessary other than to state that bill of exception No. 1 recites the following facts: Each of the arresting officers testified that contemporaneously with the arrest they had prepared a complete report of the transaction in question. The arrest was shown to have occurred some two years prior to the trial. The officers testified that before coming to court they had read the report and were in fact testifying from their, refreshed memory. After each of the officers had testified, appellant made a request upon the prosecutor to produce such report for the purpose of cross-examining the officers. The prosecutor admitted that he had such report in his possession, but the court refused to order him to. deliver the same to appellant’s counsel for the purpose stated, to which appellant objected.

Thereafter, at the hearing on the motion for new trial, appellant again made demand upon the prosecution for production of said report for the purpose of perfecting his bill of exception, but, even though it was stipulated that the prosecutor had said report in his possession, the court declined to order him to produce the same.

In the recent case of Moreno v. State, 170 Texas Cr. Rep. 410, 341 S.W. 2d 455, in explaining our prior holding in Wiley v. State, 169 Texas Cr. Rep. 256, 332 S.W. 2d 725, we said:

“Our holding was that such statements should have been made available for the record for the purpose of showing injury, if there was injury.”

For the error of the court in failing to permit appellant to perfect his bill so that he might show injury, if any occurred, the judgment is reversed and the cause remanded.