Refreshing Memory of a Witness In Texas
In Welch v. State, 576 S.W.2d 638 (Tex. Crim. App. 1979), the Court of Criminal Appeals stated:
A witness testifies from present recollection what he remembers presently about the facts in the case.
When that present recollection fails, the witness may refresh his memory by reviewing memorandum made when his memory was fresh.
After reviewing the memorandum, the witness must testify either his memory is refreshed or his memory is not refreshed.
If his memory is refreshed, the witness continues to testify and the memorandum is not received as evidence.
However, if the witness states that his memory is not refreshed, but has identified the memorandum and guarantees the correctness, then the memorandum is admitted as past recollection recorded. Id. at 641, citing Wood v. State, 511 S.W.2d 37 (Tex. Crim. App. 1974).
Contrary to the State's trial objection, Rule 612 does not require that the witness have prepared the memorandum used to refresh her memory. See Callahan v. State, 937 S.W.2d 553, 559 (Tex. App.--Texarkana 1996, no pet.).
Therefore, the trial court erred in sustaining the State's objection on the basis advanced at trial.
However, our law provides that if the trial court's decision is correct on any theory of the law applicable to the case, it will be sustained even though the trial court gave the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990); Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988).
As a predicate to refresh a witness's memory, there must be a showing that the witness was unable to answer the question because his present recollection failed.
In other words, there must be a showing that the witness's memory needed to be refreshed. See Callahan, 937 S.W.2d at 559.