WASHINGTON v. STATE

PER CURIAM.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). The trial court assessed a life sentence when the jury answered the second statutory issue in the negative. See Article 37.071(b)(2), V.A.C.C.P. (1986). The Tenth Court of Appeals affirmed the conviction. Washington v. State, 822 S.W.2d 110 (Tex.App. — Waco 1991). We granted review to determine whether the Court of Appeals erred in holding that the State was allowed to examine a taped interview between a witness for the State and an investigator for the defense. We will reverse.

The victim was found dead in her home on March 2, 1986. She had been beaten and raped. The court's charge to the jury allowed conviction on the theories that appellant, acting either alone or as a party with Joe Sidney Williams, intentionally killed the victim in the course of committing burglary or in the course of sexually assaulting her. The jury returned a general verdict.

The ground for review presented herein concerns evidence procured by Don Youngblood, an investigator working for appellant, who taped a pre-trial interview with Billy Joe Wilkerson, one of the State's witnesses. During his cross-examination of Wilkerson at trial, appellant asked Wilkerson about various statements made during the interview with Youngblood. Wilkerson denied telling Youngblood that he had seen someone named "Don" on the night of the murder. Wilkerson admitted, however, making the other statements which appellant wished to show were contradictory to his trial testimony. During appellant's cross-examination, the State was allowed to hear the recording of the interview in the judge's chambers. Later, during the redirect examination of Wilkerson, the State asked the trial court to require Youngblood to produce the tape recording of the interview. Over appellant's objections that the tape was protected work-product, the court so ordered. The tape was then admitted into evidence and played for the jury.

A summary reproduction of the exchange between appellant's attorney and the witness Wilkerson is contained in "Addendum A" to appellant's brief to this Court. "Addendum A" is an accurate recitation, and we have reproduced it as Appendix A to this opinion, post.

The Court of Appeals held that the trial court properly required appellant to produce the tape. Although the Court of Appeals stated that general work-product rules should be applied to defense counsel, the Court implicitly held that the tape in question was not protected because it was a recording of a direct statement. See Washington, 822 S.W.2d at 116-17. The Court of Appeals expressly held that the tape was properly admitted into evidence under Rule 107 of the Texas Rules of Criminal Evidence, the "Rule of Optional Completeness." Id. at 117; see TEX.R.CRIM.EVID. 107. We granted review to determine whether the court of appeals erred in holding that the tape was not protected work-product, but before addressing the merits on that issue, we must first address the court of appeal's holding regarding Rule 107.

Rule 107 provides:

When part of an act, declaration, conversation, writing, or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. "Writing or recorded statement" includes depositions.

TEX.R.CRIM.EVID. 107.

I. RULE 107

In its discussion of the issue of the tape-recording's admissibility under Rule 107, the Tenth Court of Appeals held that the entire recording was admissible, reasoning that "if the court had authority to require Appellant [sic] to deliver the tape, then the whole of the 'conversation' between the investigator and Wilkerson would be admissible under Rule 107 because Appellant [sic] first questioned Wilkerson about it." Id. at 115. In so holding, the court of appeals misconstrues the rule. Although the contents of a tape are subject to the Rule of Optional Completeness, the rule is not implicated until such time as a party attempts to have a portion of it "given in evidence." TEX.R.CRIM.EVID. 107. Then, the adverse party is entitled to introduce into evidence the remaining parts of the "act, declaration, conversation, writing or recorded statement," or any related "act, declaration, conversation, writing or recorded statement" necessary to a full understanding of the evidence. Id. Clearly, the first requirement of Rule 107 is that matter "be given" in evidence. Failing that, there is no justification under the rule for allowing introduction of the entire matter.

Here, no mention was made of the taped conversation, the witness (Wilkerson) was not aware of the tape's existence during his cross-examination, and appellant made no attempt to introduce the tape's contents into evidence. Further, Wilkerson was available to fully answer all questions surrounding his interview by appellant's investigator. We hold that the court of appeals erred in holding, under Rule 107, that the tape-recording was properly admitted into evidence.

II. WORK-PRODUCT DOCTRINE

Having so held, we may now address whether the State had a right to discover appellant's recording. This Court has not been called on to address the issues of the State's right to discovery or the defendant's right to resist discovery by invoking the work-product doctrine in a criminal case. See 33 Steven Goode et al, Guide to the Texas Rules of Evidence: Civil and Criminal § 503.2, at 232 (1988) [hereinafter Goode]. Discovery in Texas criminal cases has been a "one-way proposition," with the focus on requests by defendants for discovery and the State resisting those requests. Id. Criminal defendants do not have a general right to discover evidence in the State's possession, but they have been granted limited discovery by Article 39.14, V.A.C.C.P. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex.Crim.App. 1990). No similar provision grants the right to discover evidence to the State. In the context of anticipating during jury voir dire what evidence will be presented at trial, this Court has stated in dicta that the State "has no right of discovery into the defendant's case." Demouchette v. State, 731 S.W.2d 75, 81 (Tex.Crim.App. 1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). Without a more elaborate addressing of the State's general right to discovery in criminal cases, we hold that, in this case, the tape was protected work-product.

In a supplemental brief to this Court, the State contended for the first time that the work-product privilege did not apply here because the investigator was not working for appellant or his counsel. The investigator interviewed Wilkerson in preparation for Joe Sidney Williams' trial. Appellant counters that the tape would still be protected since he and Williams share a common interest. Without addressing the merits of either argument, we find that the State waived this claim by not presenting it before the court of appeals or on original submission to this Court. See, e.g., Rochelle v. State, 791 S.W.2d 121 (Tex.Crim.App. 1990); Kalmbach v. State, 481 S.W.2d 151 (Tex.Crim.App. 1972). Therefore, we decline to review the State's claim here.

The work-product doctrine is vital in assuring the proper functioning of the criminal justice system. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). In defining the scope of work-product, the Supreme Court stated that it "is reflected, of course, in interviews, statements, memoranda," and other ways. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947) (emphasis added). "At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client's case." Nobles, 422 U.S. at 238, 95 S.Ct. at 2170. That materials prepared by an agent for an attorney are shielded is a clearly resolved matter:

. . . the [work-product] doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.

Id. at 238-39, 95 S.Ct. at 2170.

In our State, the scope of the work-product doctrine has only been delineated with respect to the State's rights. As the Court of Appeals noted in this case:

When invoked by the State, the work-product doctrine has generally been limited to documents which do not contain admissible evidence of the offense but instead are summaries of the evidence or discussions about the offense. Examples of materials covered by the doctrine are offense reports, investigative reports prepared by the police, internal prosecution files and papers, reports of lab tests on narcotics, and statements prepared by officers after interviewing prospective witnesses. It does not extend to statements

by witnesses, . . . to statements used before the jury, or to tape recordings of direct statements.

Washington, 822 S.W.2d at 116 (citations omitted).

This Court has examined the scope of the work-product rule in determining whether recordings of interviews with witnesses were discoverable. Cullen v. State, 719 S.W.2d 195 (Tex.Crim.App. 1986). At one extreme, a recording of a statement made by a witness without any questions by the interviewer is clearly discoverable. Id. at 198; cf. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App. 1980), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 reh'g denied, 449 U.S. 1027, 101 S.Ct. 600, 66 L.Ed.2d 490 (conversation between defendant and cohort which contained direct, material evidence about offense and was recorded by police not protected by work-product privilege; privilege not designed for and not applied to shield recorded statements of accused as opposed to ordinary witness). At the other extreme, a recording is not discoverable if it contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. Cullen, 719 S.W.2d at 198; Johnson v. State, 650 S.W.2d 784, 790 (Tex.Crim.App. 1983) (officers' additions to transcript of tape recorded conversation between defendant and co-conspirator were interpretation of original tape and therefore work-product). If the recording falls within the two extremes, the trial court must examine it in camera, decide which portions are discoverable, and order a copy of the tape consisting of those portions to be delivered to the side requesting it. Cullen, 719 S.W.2d at 198. The Cullen analysis applies in this case.

We take guidance from cases discussing the Gaskin rule. See Gaskin v. State, 172 Tex.Crim. 7, 353 S.W.2d 467 (1961). The Gaskin rule allowed the defendant to discover statements made by the State's witnesses after they had testified. That rule has been subsumed by Rule 614 of the Texas Rules of Criminal Evidence.

Here, the trial court examined the tape in camera with both parties present. This examination occurred before the State requested production of the tape and without objection by appellant. The court made no explicit findings about which portions of the tape were discoverable. Later, when the State requested production of the tape, the trial court overruled appellant's work-product objection and ordered the whole tape turned over to the State.

This case was complicated somewhat because in addition to the interview with the investigator, Youngblood, an interview between Wilkerson and Truman Simons, a deputy sheriff who investigated the case, was also taped. While Wilkerson was being cross-examined about the conversation with Simons, the State objected that the defense counsel was distorting what was said on the tape. Defense counsel first replied that they would "be glad to play the [Simons'] tape" and then said, "How about playing both tapes?" Next, the parties went into the judge's chambers and the judge asked defense counsel to play the tape recording of the interview between Wilkerson and Youngblood so the State could hear it. Appellant did not object, and the tape was apparently played.
The State did not request production of the tape until its redirect examination of Wilkerson. By the time the request for production of the tape was made and first objected to as work-product, the State had already heard the tape. The State has never asserted that Appellant waived the work-product privilege when defense counsel suggested that both tapes be played or when Appellant allowed the State to hear the tape during the in camera examination, and we therefore express no opinion on the merits of such a claim. The State's sole waiver argument is that Appellant waived whatever work-product privilege existed by questioning Wilkerson about the conversation with Youngblood. See discussion infra at p. 189.

Evaluating the credibility of an adverse witness is an important aspect of trial preparation. The State concedes that one purpose of the interview of State's witness Wilkerson was to gather information which could later be used to impeach the witness. See State's Br. at 5. In other words, the interview at issue here was an attempt both to evaluate the strengths and weaknesses of the State's case and to prepare appellant's case. See Nobles, 422 U.S. at 238, 95 S.Ct. at 2170. This Court has held that the work-product privilege applies in similar cases.

In Cullen, the defendant argued the trial court erred in denying his requests to hear tape recordings of two interviews the prosecutor had with a State's witness who was also a co-defendant. 719 S.W.2d at 197. The defendant requested the tapes during pretrial proceedings and during his cross-examination of the witness at trial. Id. This Court reviewed the tapes on appeal and determined the tape-recorded interviews constituted the State's work-product. Id. at 198. The Court stated "[c]learly the purpose of the interview was to prepare the witness for his trial testimony[,]" and then quoted the Court of Appeals with approval, stating "the tape recorded interviews are analogous to a prosecutor's notes taken of an interview with a prospective witness and do not constitute 'statement' within the meaning of the Gaskin rule." Id. at 198-99. Consequently, this Court held that a recording of an interview preparing a witness for trial was not discoverable. Id. at 198.

Also, in Brandley v. State, 691 S.W.2d 699, 713 (Tex.Crim.App. 1985), this Court found no error in the trial court's ruling that a police officer's transcription of his tape-recorded interview with a State's witness was not admissible. There, the defendant contended the trial court erred in refusing to allow him to recall that State's witness for further cross-examination and impeachment. The trial judge ruled that the police officer's offense report, which contained his transcription of the taped interview, was not a "statement" because it was neither signed nor read by the State's witness, and that it was part of the officer's investigative work-product. 691 S.W.2d at 713. This Court accepted the characterization of the tape recording as work-product, noting that the defendant had not "in any way" shown that the tape was not work-product. Id. We likewise find that because the interview at issue in the case-at-bar was conducted to prepare appellant's case for trial, the recording was protected work-product.

The State next argues that appellant waived any work-product privilege by questioning Wilkerson about his conversation with Youngblood. We reject this argument. The United States Supreme Court addressed the waiver issue in a similar case. See Nobles, 422 U.S. at 225-40, 95 S.Ct. at 2160-71. In Nobles an investigator for the defense had interviewed two prosecution witnesses and "preserved the essence of those conversations in a written report." Id. at 227, 95 S.Ct. at 2164. Then, "defense counsel sought to impeach the credibility of [those] key prosecution witnesses by testimony of [the] defense investigator regarding statements previously obtained from the witnesses by the investigator." Id. The trial court refused prosecution requests to view the report after the cross-examination of the witnesses, but ruled that it would require the defendant to submit an edited copy of the report to the prosecution if the investigator testified. Id. at 228, 95 S.Ct. at 2165. Without expressly holding that the report was protected work-product, the Supreme Court held that the defense waived any privilege it had by electing to present the investigator as a witness. Id. at 238-39, 95 S.Ct. at 2170. The Court noted that normally no waiver occurs when counsel relies on privileged material to examine a witness:

Counsel necessarily makes use throughout trial of the notes, documents, and other internal materials prepared to present adequately his client's case, and often relies on them in examining witnesses. When so used, there normally is no waiver. But where, as here, counsel attempts to make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and production of documents.

Id. at 239, n. 14, 95 S.Ct. at 2171 n. 14. Thus, "[t]he privilege derived from the work product doctrine is not absolute. Like other qualified privileges, it may be waived." Id. at 239, 95 S.Ct. at 2170.

In Texas, "testimonial use" is expressed as "use before the jury," a term most typically associated with a defendant's request for production of work-product shielded materials used by the State at trial. "The work product privilege has generally been limited to documents which themselves do not contain admissible evidence of the offense but instead are summaries of the evidence or discussions about the offense that have been prepared for the internal use of law enforcement officers[,]" but this privilege does not extend to statements used before the jury. Quinones, 592 S.W.2d at 940. A document has been "used before the jury" when shown to a witness on the stand, identified by a witness, or partially read aloud to the jury. Mendoza v. State, 552 S.W.2d 444, 448 (Tex.Crim.App. 1977). See also Haywood v. State, 507 S.W.2d 756 (Tex.Crim.App. 1974) ("use before the jury rule" inapplicable where defendant calls witness and asks for offense report); White v. State, 478 S.W.2d 506 (Tex.Crim.App. 1972) ("use before jury rule" not triggered by silent reading of document by prosecutor where document is not called to witness's attention or exhibited to witness or he is not questioned in such way that contents of document become an issue); Sewell v. State, 367 S.W.2d 349 (Tex.Crim.App. 1963) (Opinion on Rehearing) (no use of offense report before the jury where officer used it only to refresh his memory before testifying); Bailey v. State, 365 S.W.2d 170 (Tex.Crim.App. 1963) (rule applicable to photograph used by State when questioning officer); and Jackson v. State, 166 Tex.Crim. 348, 314 S.W.2d 97 (1958) (statement used before the jury where witness while testifying used statement to refresh memory). In other words, the State's counsel "must in some way inform the witness that the document or statement is being referred to during the examination[ ]" and the contents put before the jury in such a way that they become an issue before the defendant is entitled to inspect the documents. Mendoza, 552 S.W.2d at 448 ( citing Rose v. State, 427 S.W.2d 609 (Tex.Crim.App. 1968); and Sewell, 367 S.W.2d at 349). We perceive of no justification for not extending the same test to work-product claims of a defendant, and do so today.

In this case, appellant never attempted to make a "testimonial use" of the materials. While cross-examining Wilkerson about the interview with Youngblood, appellant did not indicate that the interview had been recorded, did not offer the tape to refresh Wilkerson's memory, and did not offer the tape as extrinsic evidence of prior inconsistent statements. Trial counsel's mention of the interview was merely to inform the witness as to what he was referring, and not for the purpose of presenting the contents of the conversation either into evidence or for the purpose of direct impeachment. Instead, appellant's counsel inquired of an adverse witness, in general terms, the substance of a conversation had with counsel's agent. The witness responded out of his own personal recollection. Such a manner of questioning is consistent with the purpose of adequately investigating a client's case and using any information gleaned therefrom during the course of cross-examining a hostile witness. Thus, we hold that appellant did not waive the work-product privilege because appellant did not make testimonial use of the tape.

In its brief, the State maintains that it "would be allowed to inspect the prior statement between Wilkerson and the investigator, even if Appellant [sic] had a work-product privilege, he waived this privilege." State's Br. at 3. This waiver follows, it avers, because Rule 612 dictates that, when requested, opposing counsel must be shown a writing used to put forth prior inconsistent statements of a witness, and that this occurred "when Appellant [sic] cross-examined the State's witness trying to impeach him. . . ." Id.; see TEX.R.CRIM.EVID. 612. The State's interpretation is incorrect. As noted, appellant did not make testimonial use of the tape recording and, therefore, the work-product privilege stood in superior position to the State's claim under Rule 612; thus, there could not have been a waiver because the State was never entitled to review appellant's materials. Nobles, 422 U.S. at 240, n. 14, 95 S.Ct. at 2171, n. 14; cf. Quinones, 592 S.W.2d at 940.

Having determined that the tape was protected work-product and that appellant did not waive his work-product privilege, we hold the trial court erred in requiring appellant to produce the tape. Appellant's ground for review is sustained.

Accordingly, we reverse the decision of the court of appeals, and the cause is remanded to that court for a harm analysis. See TEX.R.APP.P. 81(b)(2).

McCORMICK, P.J., dissents.