Washington v. State

In Washington v. State, 856 S.W.2d 184 (Tex. Crim. App. 1993), defense counsel sought to impeach one of the State's witnesses by questioning the witness about his statements made during a pre-trial interview with a defense investigator. The interview in question, which the investigator had tape-recorded, contained statements that were inconsistent with the witness' testimony at trial. When defense counsel questioned the witness about the contradictory testimony, the witness admitted to making most of the prior inconsistent statements to the investigator. At no time did the defense request admission of the tape itself, either in whole or in part, nor did the defense attempt call the investigator to testify about the interview. During redirect examination of the witness, the State asked the court to compel production of the tape, over defense objections that the tape was protected work-product. The trial court admitted the entire tape-recording of the interview into evidence. The Court of Appeals held that the tape was properly admitted into evidence under Rule 107. The Court disagreed with the Court of Appeals: 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.Washington, 856 S.W.2d at 186. In Washington, we held that admission of the tape was error because: no mention of the tape was made during cross examination; defense made no attempt to introduce the tape's contents into evidence; the witness was available to answer questions about the interview with the investigator. Washington, 856 S.W.2d at 186-87.