¶1ON APPELLANT’S MOTION FOR REHEARING
¶2In his motion for rehearing appellant contends that we should reverse his conviction because the trial judge denied his request that the witness, Officer E. R. Thaler, he required to produce his offense report. Reliance is had upon Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467, and upon Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97.
¶3Officer Thaler, having testified for the state, was asked on cross-examination whether he had refreshed his memory from his offense report, and he answered that he had. He was asked if he had the report with him and he said he did not, but that his partner probably had it out in the hall.
¶4It was shown that the witness had not used the report in the courtroom, and that appellant’s request to see it “if he did refresh his memory before he came in here” was denied, and he excepted.
¶5The trial court made the offense report requested a part of his qualification to appellant’s informal bill of exception.
¶6*351Under the rule in Gaskin v. State, 353 S.W.2d 467 (which parallels the Jencks rule in Federal Court) failure to require the production of a prior statement of the witness is not necessarily a denial of due process. The error may he harmless. Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931; Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; Perdue v. State, 171 Tex.Cr.R. 332, 350 S.W.2d 203; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528; Hughes v. State, Tex.Cr.App., 358 S.W.2d 386; Rodriguez v. State, Tex.Cr.App., 360 S.W.2d 406; Aguillar v. State, Tex.Cr.App., 362 S.W.2d 111.
¶7For similar holding under the Jencks Act, 18 U.S.C. § 3500, see Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304.
¶8We find no such conflict between the testimony of the witness and his offense report, or such omission in the latter, as would warrant the conclusion that he was prejudiced in not having the report furnished him for cross examination.
¶9Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97, does not support appellant’s claim for reversal. The rule found in that case applies only where the statement requested has been used by the witness while testifying.
¶10The two rules should not be confused.
¶11As has been stated, the failure to produce a prior statement of a witness which has not been used in some way before the jury by which its contents became an issue, will not result in reversal unless injury is shown or the defendant is deprived of the opportunity to show injury.
¶12Reversal will result, however, without any showing of injury for denial of the defendant’s timely request or demand that he be permitted to inspect any document, instrument or statement which is used in some way before the jury by which its contents becomes an issue, such as used by the witness to refresh his memory (Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Green v. State, 53 Tex.Cr.R. 490, 110 S.W.2d 920, 22 L.R.A.,N.S., 706; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166); or exhibited or read from or used to question the witness in the jury’s presence (Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464; Bailey v. State, Tex.Cr.App., 365 S.W.2d 170 (photograph exhibited before the jury).
¶13The appellant is not shown to have been denied the right to inspect a statement or document that was used before the jury, and has shown no harm or injury resulting from the denial of the prior statement of the witness for use on cross examination.
¶14Appellant’s motion for rehearing is overruled.