Young v. State , 1994 Tex. Crim. App. LEXIS 112 ( 1994 )

McCORMICK, Presiding Judge,

dissenting on appellant’s petition for discretionary review.

The rudder came off this boat when this Court granted appellant’s petition for discretionary review of the original opinion in Young v. State, 803 S.W.2d 335 (Tex.App.—Waco 1990). (Young I). We should attempt to rescue the boat now before its unguided meandering through rough seas crashes us on the rocky shore.

After reviewing again the original opinion in Young v. State, supra, and our opinion on petition for review, Young v. State, 830 S.W.2d 122 (Tex.Cr.App.1992) (Young II), I still cannot understand how Rule 611, Tex. R.Crim.Evid., ever got in this case, top, side or bottom. Even if it could be argued with a straight face that Rule 611 was in any way implicated in this case, the Court of Appeals was absolutely correct when it held in its opinion on rehearing that appellant failed to preserve error. Young v. State, 803 S.W.2d 335, 340.

At appellant’s trial, Leotia Howard, whose then deceased husband had co-owned the burglarized premises with her, testified that appellant did not have permission to enter the premises on the date in question. As noted in footnote 1 of our original opinion on discretionary review, Mrs. Howard also testified that she was the bookkeeper for the burglarized business. She further testified:

“Q. At my request did you have an occasion to review your books regarding the area of around March 31, 1988?

“A. Yes.

“Q. Was there any construction work being done at Billy’s on March 31, 1988?

“A. I don’t recall any.

“Q. In addition to that, you did check the books; is that correct?

“A. I did.

“Q. Are there any invoices or any sort of payment records reflecting work being done on March 31, 1988?

“A. No.

“Q. Was there anything in your records about a Roosevelt Young being hired to do any work at Billy’s?

“A. No. (S.F. 83-84)

“After close of direct examination counsel for defendant requested ‘all of the records that she reviewed prior to her testimony for purposes of impeachment,’ generating the following dialogue:

“[Prosecutor]: I don’t have them, Your Honor.

“The Court: You don’t have any?

“[Prosecutor]: I asked her to review them. I didn’t ask her to bring them to Court with her.

“[Defense]: Your Honor, if she reviewed those records to refresh her memory prior to the time she came here, I’m entitled to have them to cross examine her with. I move at this time that I be provided with a copy of them.

“[Prosecutor]: I think essentially what she testified to is the absence of any records, Your Honor.

“The Court: I overrule the objection. Proceed with the examination.” (Emphasis added)

It is unmistakable that the State was offering the testimony of the witness pursuant to Rule 803(7) (Absence of entry in records kept in accordance with the provisions of Rule 803(6) [Records of regularly conducted activity.] ) There was no showing that Rule 611 was implicated.

Following his conviction, appellant argued that he had a right to review the records of the bar, and argued that the failure to provide the records violated a pretrial discovery motion. The Court of Appeals held that appellant failed to preserve the issue because a ruling was never obtained on his motion for discovery. Young I, 803 S.W.2d at 338. On motion for rehearing, appellant argued that the Court of Appeals erred in relying on Article 39.14, V.A.C.C.P., and that he was entitled to the records under the provisions of Rule 611. The court held that, regardless of whether the court relied on Article 39.14 or Rule 611, appellant had still failed to preserve error. Young I, 803 S.W.2d at 340.

It is not disputed that Rule 611 was a “dramatic expansion of Texas practice.” Texas Rules of Evidence, John Ackerman, Release 3, 611-1. The Rule “grants an adversary the right to inspect documents used to refresh memory regardless of whether the witness reviews them before or while testifying.” Texas Rules of Evidence, Goode, Wellborn and Sharlot, 1 Texas Practice, Section 612.3. But what we must focus on is the purpose of the rale. As its title explains, Criminal Rule 611 deals with “Writing Used to Refresh Memory.” It has been explained:

“When a witness experiences a lapse of memory, counsel may use several methods to assist the witness to remember. Essentially, counsel may employ a mnemonic device, most often a writing but by no means limited to writings, in an effort to prod the memory.

“If, after confrontation with the mnemonic device, the witness still does not remember, it may be possible to introduce a writing for whose accuracy the witness can vouch even though the witness is unable to remember the contents. This is a past recollection recorded, not present recollection refreshed. Unfortunately, the courts have confused the two separate rules. A past recollection recorded may be introduced as an exception to the hearsay rule under Rule 803(5). Present recollection refreshed is the subject of Civil Rule 612 and Criminal Rule 611, and is favored over past recollection recorded. This rule is generally consistent with pre-rules law.

“The predicate for present recollection refreshed differs from that for past recollection recorded. Under the former, a mnemonic device is used after counsel determines that a witness had personal knowledge at some time in the past but now cannot remember. If the witness’s memory is refreshed, the witness testifies directly as to the matter. Despite some older and ill-advised cases to the contrary, it is not necessary that the -witness have prepared the writing used to refresh. What matters is whether the memory is, in fact, refreshed. If so, the testimony is received as substantive evidence. The writing used to refresh does not come into evidence unless the opponent wishes to offer it. Since it is the testimony that constitutes the evidence in present recollection refreshed cases, there is no problem with the best evidence rule, and the original is not required.

“On the other hand, in past recollection recorded eases, the writing is the evidence, not the testimony, and a best evidence rule issue may arise. The predicate for past recollection recorded is set forth in Rule 803(5). Only if the memory of the contents is not refreshed may the past recollection recorded be used. If there is no present recollection of the contents, the writing may qualify as a past recollection recorded, but only if the witness can testify that he or she does remember that the writing is accurate.” (Citations omitted). Wendorf, Schlueter, and Barton, Texas Rides of Evidence Manual, 3d ed., VI-85-87.

Mrs. Howard’s testimony was neither past recollection recorded nor present recollection refreshed. She testified that she personally did not recall any construction work and that the records of Billy’s Bar reflected no invoices or payments for construction work. As reflected by the prosecutor’s response to appellant’s objection, this evidence was being offered pursuant to Rule 803(7).

“Rule 803(7) permits proof of the nonoccurrence or nonexistence of a matter by showing that no l’ecord of it is found in regularly kept records that would be expected to have recorded it if it did occur or exist. The prior Texas business records statute contained a similar provision.

“A presentation under Rule 803(7) requires, first, a foundation sufficient to qualify the record under Rule 803(6). Second, either the record must be introduced, or the custodian or other qualified witness must testify that a diligent search failed to disclose the matter. The best evidence rule is not violated by testimony that a writing does not contain any reference to a matter_” (Citations omitted). Goode, Wellborn, and Sharlot, supra, Section 803.12.

I realize that it may be too late to correct our earlier mistakes in this matter. Since our opinion in Young II was a plurality, we should now order that it be withdrawn, and improvidently grant this petition. To be addressing matters that are not properly presented by the record before us is tantamount to issuing an advisory opinion.

I respectfully dissent.

WHITE and MEYERS, JJ., join this dissent.