Delrosario, Dennis Valdivia v. State ( 2002 )

Opinion on Motion for Rehearing filed May 30, 2002

Opinion on Motion for Rehearing filed May 30, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00477-CR

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DENNIS VALDIVIA DELROSARIO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1047163

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O P I N I O N   O N M O T I O N

F O R   R E H E A R I N G

            The following opinion is issued in addition to that issued in this case on January 31, 2002.

            Appellant’s first point of error complained of the trial court’s failure to comply with Texas Rule of Evidence 612 by refusing to order production of an employment application about which an officer testified during trial.  Our original opinion overruled this challenge on the ground that the record does not reflect that the officer ever used the application to refresh his memory.

            Appellant’s motion for rehearing contends that our opinion is in error because the record reflects that the officer refreshed his memory with an offense report while testifying. In addition to the fact that appellant’s brief complained only about the employment application, and not the offense report, the record does not reflect that the trial court refused production of the offense report.

            The trial court’s alleged ruling consists only of an anonymous handwritten notation in the margin of appellant’s pre-trial motion for disclosure. According to appellant’s original brief, this notation limits production to documents that were subpoenaed by him and/or were “available.”  Although, the offense report was clearly available at trial, appellant did not request to see it, cross-examine the officer with it, or introduce any portions of it into evidence.  See Tex. R. Evid. 612.  Therefore, even if the handwritten notation can be considered a ruling, appellant’s motion for rehearing fails to demonstrate that it refused production of the offense report and is overruled.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Opinion filed May 30, 2002.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish — Tex. R. App. P. 47.3(b).