Bates v. State

PHILLIPS, Judge,

dissenting.

I.

Corrupt public officials are no less citizens deserving of the protection of our laws and procedures than any other person who appeals to this Court. The majority affirms this case notwithstanding two serious errors committed by the trial court in the course of this trial. The first error was failing to allow the defense to have independent experts examine the tape recordings that were indispensable to the State’s case. The second such error was failing to allow the defense to develop for the jury the context in which Nukie “Frenchy” Fontenot was brought to them as the State’s “principal witness.”

II.

On August 18, 1976, appellant filed a motion for an independent examination, inter alia, of the original tape recordings at any laboratory designated by the district attorney. Article 39.14, V.A.C.C.P., provides:

“Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.”

Appellant’s motion was ultimately overruled by the trial court prior to trial.

The appellant relies exclusively on this Court’s rulings in Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.), and Terrell v. State, 521 S.W.2d 618 (Tex.Cr.App.), appeals in which convictions for possession of LSD and marihuana, respectively, were reversed because the trial courts overruled the appellants’ pretrial motions for an independent examination of the drugs allegedly possessed. In both opinions by Judge Morrison, no express mention is made of whether and to what extent “good cause” must be alleged or shown in a motion for “inspection” of non-privileged “tangible things . which constitute or contain evidence material to any matter involved in the action.” As a threshold matter, we hold that the requirement of “good cause” is necessary to a motion for inspection as well as one for discovery. Smith v. State, 468 S.W.2d 828 (Tex.Cr.App.); Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App.); Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.); Feehery v. State, 480 S.W.2d 649 (Tex.Cr.App.). That this Court’s consideration of the “good cause” issue when confronting a request for independent examination of *136particular evidence to be relied upon by the State varies from its analysis vis-a-vis more general discovery motions is demonstrated in its opinions in Detmering and Terrell, supra, and is underscored by Judge Douglas’s opinion in Feehery v. State, supra, Footnote 2. The primary reason for this variation in analysis is that an “inspection” means “more than a visual examination of an object. [A] visual examination would not always divulge anything of probative value” concerning “the item on which the State bases its case . . . .”1 Detmering v. State, supra, at 864. Additionally, Detmering leaves us with the idea that “good cause” will be imputed by this Court if the evidence sought to be examined is “the item on which the State bases its case,” i. e., a crucial piece of physical evidence. Id. at 864.

Thus, inquiry now turns to whether the tape recordings sought to be examined by appellant were pieces of physical evidence crucial to the State’s case or, in other words, “item[s] on which the State base[d] its case” against appellant.

The State’s chief incriminating witness was Nukie (Frenchy) Fontenot. The trial court charged the jury that this witness was an accomplice witness as a matter of law, thereby requiring the State to corroborate his testimony before the jury could rely upon it. Article 38.14, V.A.C.C.P. The tape recordings of conversations between Riklin and Fontenot and appellant and Fon-tenot, made by Fontenot, were crucial in corroborating the accomplice witness testimony of Fontenot. These tape recordings tended to connect appellant to the offense of bribery and make Fontenot’s testimony more likely than not trustworthy. Caraway v. State, 559 S.W.2d 661 (Tex.Cr.App.); Article 38.14, V.T.S.A., C.C.P., Note 119.

Of additional relevance to the consideration of whether “good cause” existed for appellant’s motion for an independent examination of the original tape recordings is the fact that accomplice witness Fontenot provided the testimonial predicate for the admission of the tape recordings as required under Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.). One of the seven elements required for a predicate is that no changes, additions, or deletions have been made on or to the tape recordings. In this vein, there appear to be pauses in the recordings, as well as unintelligible statements marked as “(?)” in the record.2 The pauses were explained by Fontenot to have resulted from *137the displacement of the suction-cup device used on the phone to record the conversations. Although the ultimate question of whether the tapes are admissible is a matter for the trial court’s discretion, an expert witness would be material to the informed exercise of that discretion. Such a witness would also be essential to any defense against the admissibility of the tape recordings.

Finally, in a bribery prosecution, the essence of the offense is the “understanding” upon which the offer or acceptance of money or other benefit is predicated. It must be “as consideration for the recipient’s . exercise of official discretion . . . .” V.T.C.A., Penal Code, Section 36.02. Thus, the discussions or linguistic context of the terms of the offer or acceptance are critical to any successful bribery prosecution. This inescapable fact renders the tape recordings critical to the State’s case and renders the trial court’s refusal to order an independent examination of the original tape recordings reversible error. Detmering v. State, supra; Terrell v. State, supra.

The majority concedes much of the foregoing when it holds the motion should have been granted. Yet it ignores the same considerations when it concludes the error was harmless because there has been no showing of any tampering or alterations. In holding that the accomplice witness Fontenot was corroborated in his testimony, the tape recordings are cited first. Only his possession of the marked money aids corroboration, but not as to Fontenot’s testimony that it was his “understanding” that the payoff to Riklin was in consideration for the appellant’s granting probation to Fontenot. For this crucial element of the case, the tapes were indispensable. Additionally, the majority points out that the predicate for the admission of the tape recordings into evidence was established by the accomplice witness Fontenot.

The failure of the trial court to accord the appellant an adequate opportunity to prepare his defense should call for a reversal.

III.

In his ground of error one, the appellant contends that the trial court erred in failing to allow John Tanner, an undercover officer, to testify and rebut certain testimony given by the State’s primary witness Nukie Fontenot. Fontenot testified that he did not have any “deal” with the district attorney to drop any pending charges in exchange for his testimony. On cross-examination, Fontenot denied his involvement in the Mize house robbery and stated he was not guilty of that offense. Fontenot admitted he sold some jewels to undercover officer Tanner but denied telling Tanner he “set up” the robbery. With regard to other criminal actions, Fontenot testified as follows:

“Q [By the appellant’s attorney] As a matter of fact you asked Mr. Tanner during this conversation, Mr. Fon-tenot, you asked him would he kill a man by the name of Pope. Do you remember that?
A No sir, I did not.
Q You did not do that. You don’t remember asking Mr. Tanner if he would kill Pope if the price was right?
A No sir, I didn’t.
Q Do you remember Mr. Tanner asking you if you were going to furnish the weapon and you said that you would?
A No sir, I did not.
Q Sometime before you started talking to Mr. Riklin, did you tell Mr. Tanner that you had been working on buying some machine guns?
A Not to Mr. Tanner, no.
* * * * * *
Q Did you tell Mr. Tanner, who you now know to be working for the Sheriff’s Office, you had been working on buying some machine guns?
A No sir, I did not.
Q Did you tell Mr. Tanner that you would like to sell some machine guns for narcotics?
*138A No sir, I did not.”

The appellant sought to impeach this evidence with the testimony of John Tanner, an undercover detective with the Harris County Sheriff’s Department, Narcotics Division. Officer Tanner testified, on a bill of exception, that he had met Fontenot in his capacity as an undercover officer while trying to purchase machine guns from Fonten-ot. Originally, Tanner was to pay for the machine guns with marihuana, but Fonten-ot later demanded money. While in Fon-tenot’s pawn shop during these negotiations, Fontenot asked Tanner if Tanner “was interested in doing a jewelry robbery on a salesman.” Tanner told Fontenot he would be interested only after the machine gun negotiations were completed. Fonten-ot later specifically identified Charles Mize as the target of the robbery. After this robbery occurred, the negotiations on the machine guns terminated. Tanner then arranged to purchase some of the jewelry from the Mize robbery. Fontenot stated that he was the “brains of the operation” and had “set up” the Mize robbery. After Fontenot sold some jewelry to Tanner, he was arrested and subsequently indicted for that offense.

Tanner testified that during the negotiations as to the purchase of the jewelry Fontenot asked Tanner if he would be interested in killing an individual named Pope. Fontenot agreed to furnish the gun for the killing and stated he had several stolen guns in his pawn shop.

The defense argued that this evidence was admissible to impeach Fontenot’s denials of these facts and to rebut the inferences his testimony left with the jury that Fontenot was “a fine Christian man.” The trial court ruled that defense counsel could not introduce evidence of the “machine gun deal,” the “dope deal,” or of the arrangement made by Fontenot to kill Pope as they were collateral matters; but, the trial court ruled the defense could introduce the testimony concerning the Mize robbery.

The trial court’s ruling was apparently based on the general principle that specific acts of misconduct by a witness are not admissible for impeachment purposes. Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.); Thrash v. State, 482 S.W.2d 213 (Tex.Cr.App.); Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.). This general principle applies when reviewing the propriety of a trial court’s ruling as to the admissibility of specific acts when those acts are first sought to be introduced. However, once a witness is allowed to testify concerning specific acts and events, the general principle does not apply. In such instance, the opposing party may present evidence to rebut the testimony. Such rebuttal evidence is admissible because it directly relates to the credibility of the witness and is properly admitted to dispel any false impressions conveyed to the jury by the initial testimony. Montemayor v. State, 543 S.W.2d 93 (Tex.Cr.App.); Binnion v. State, 558 S.W.2d 485 (Tex.Cr.App.); Randolph v. State, 499 S.W.2d 311 (Tex.Cr.App.); Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712.

In Montemayor v. State, supra, an appeal from a conviction for aggravated assault on a police officer, we reversed a conviction for failing to allow impeachment testimony. The complaining witness, Deputy Sheriff Menchaca, testified that the appellant attacked him without provocation. On cross-examination, Menchaca denied he had ever been involved in a fight with one Oscar Antu. Later, the defendant was not allowed to present evidence from Antu that Menchaca had beaten him without provocation in the county jail. In reversing, we held:

“It is fundamental that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution. E. g., Daley v. State, Tex.Cr.App., 491 S.W.2d 932; Simons v. State, 167 Tex.Cr.R. 15, 317 *139S.W.2d 740; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712 (on motion for rehearing). The right to impeach the prosecution’s witnesses is also one aspect of the Sixth Amendment right of confrontation. See, e. g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).”

In Binnion v. State, supra, we reaffirmed our holding in Montemayor. In Binnion, Officer Jerry Davis testified that the defendant had sold him over 14 ounces of marihuana. On cross-examination, Davis denied that he had ever smoked marihuana or that he had ever offered to sell heroin to the defendant. This Court held the trial court reversibly erred when it subsequently excluded testimony offered by the defense to rebut Davis’s prior denials since such testimony went to the credibility of the witness and related to the case.

In Randolph v. State, supra, in an evenhanded application of the rule, we affirmed a conviction for the sale of heroin. On cross-examination by the State, the defendant denied not only having sold heroin on the date charged, but denied having sold heroin to the police officers at any time. In rebuttal, the State was allowed to impeach the testimony of the defendant by showing the details of other purchases of heroin and barbiturates.

These cases rest upon the reasoning that the jury is the sole judge of the credibility of the witnesses. Having once allowed a witness to testify concerning specific acts and events which are more than trivial details of the testimony, the opposing party may then rebut that testimony in order to present the jury with the true facts from which to determine credibility. In the instant case, having allowed Fontenot to testify and deny his involvement in the transaction for the sale of machine guns and denying he sought to commission Officer Tanner to kill Pope, the appellant should have been allowed to rebut this testimony and eliminate any false impressions conveyed to the jury.

Nor can it be argued that the error was harmless. The issue of guilt was closely contested and hinged primarily upon the relative credibility of two witnesses, State’s witness Fontenot and the appellant. Fontenot was an accomplice witness. His testimony was corroborated by tape recordings which he authenticated. Fontenot’s testimony concerning the interpretations and impressions he drew from the taped conversations was crucial to the State’s case. Further, the testimony on which the appellant sought to impeach Fontenot concerned acts occurring immediately before and after the robbery charge which formed the basis of the present offense. As was noted in Napue v. Illinois, supra: “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, . . . .”

Further, in Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.), a unanimous opinion by Judge W. C. Davis, this Court held:

“. . ., great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive and animus upon the part of any witness testifying against him. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974); Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974).
. By presenting evidence to the jury that, while Rhoades [a prosecution witness] had participated in some criminal offense and had been arrested for robbery and murder and indicted for theft, but that those charges were no longer pending against him, appellant sought to show that Rhoades had some interest and motive in testifying for the State. The inference that the jury could have drawn was that Rhoades had a personal interest in helping the prosecution prove its case against appellant and, *140therefore, may have been an unreliable witness. While the jury may have chosen to reject such an inference, especially since Rhoades denied that he was testifying for the State because of his vulnerable status, this evidence, was nevertheless admissible and appellant should have been permitted to prove these facts, [citations omitted]”

The appellant contends that the proffered evidence tended to show that accomplice Fontenot’s testimony was prompted by his desire that no charges be filed concerning the “machine gun deal” or his solicitation of Tanner to kill Pope. V.T.C.A., Penal Code, Sections 15.03, 19.03(a)(3), 46.06(a)(2), and Section 15.01. See Simmons v. State, supra; Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.), and cases cited therein; see generally, 62 A.L.R.2d 610, 20 A.L.R.2d 1421.

As stated by the United States Supreme Court in Davis v. Alaska, supra:

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. ... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence, § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).” 3

While this language from Davis concerns primarily the right to confront witnesses by cross-examination, the principles are equally applicable under the facts of this case. The appellant sought to show, through the testimony of Officer Tanner, that Fonten-ot’s motivation in testifying for the State was to curry favor with the prosecuting authorities in the hope that no charges would be filed on the other criminal acts. Castro v. State, supra; Simmons v. State, supra.

We cannot speculate as to whether the jury, as sole judge of the credibility of the witnesses, would have chosen to believe Tanner’s testimony. The jurors were entitled to have this testimony before them in order to place Fontenot’s testimony in the proper perspective and to allow the jury to make an informed judgment as to Fonten-ot’s reliability. Consequently, the trial court reversibly erred in excluding the proffered impeachment testimony.

For the reasons set forth, I respectfully dissent.

. With respect to the adequacy of an examination of the copies provided defense counsel under their discovery motion, the testimony of Dr. Thomas G. Stockham at the hearing on appellant’s motion for new trial is illuminating.

“Q Now, then, my question of you, sir, in your opinion, is it professionally agreeable to inspect or examine tapes to do so from a copy rather than the original?
A It will be extremely much more difficult to make any intelligent examination of such tapes from a copy compared to from an original.
Q Can you explain just briefly why this is so?
A Yes. First of all, the original tape has information on it concerning the details of how it was made, what kind of machine it was made on, the nature of that machine and so on, which are completely eliminated in the process of creating a copy. Much of the information that is germane to the authenticity and originality of the first tape, the actual tape originally made cannot be physically transcribed by making a copy. Some can, however, the amount of information that is transferred on this copy relative to this issue constitutes a minority of the important information.
MR. REYNOLDS: I have no further questions.
CROSS-EXAMINATION
QUESTIONS BY MR. HOLMES:
Q Doctor, could you listen to a copy of the original tape and determine from listening to that copy whether or not any reasonable ground exists to subject it to further tests, for example?
A Not with much reliability.
Q You would not listen to a copy to make that determination?
A Well, you might listen to a copy, but you wouldn’t place very much weight on that particular kind of examination .

. An example is the following statement by Riklin to Fontenot on June 8, 1976, following a recorded call between Bates and Fontenot in which Bates pointed out the impropriety of the ex parte communication and the necessity of disqualifying himself if Fontenot did not terminate the conversation:

RIKLIN: “It’s over with (inaudible) is going to disqualify himself and that’s it that — ”

. As stated in Wharton’s Criminal Evidence, Sec. 435 (13th Ed.):

“The cross-examiner is allowed great latitude in questioning a witness to ascertain his motive for testifying. This is particularly true where the defendant is cross-examining a witness for the prosecution who is a code-fendant or accomplice, or who is a person threatened with criminal prosecution for an independent crime, whose testimony against the defendant may be motivated by a promise or hope of immunity or leniency.”