Anthony Dwayne BINGHAM, Appellant, v. The STATE of Texas, Appellee.
No. 0891-92.
Court of Criminal Appeals of Texas.
Nov. 15, 1995.
David Waddill, Assistant Dist. Atty., McKinney, Jeffrey L. Van Horn, Assist. State‘s Attorney, Robert A. Huttash, State‘s Atty., Austin, for the State.
OPINION ON STATE‘S MOTION FOR REHEARING ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
On original submission in this cause, a plurality of the Court held that the court of appeals did not err to interpret
PLAIN MEANING IN CONTEXT
“A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”
The issue here is whether out-of-court statements of an accomplice to the charged offense constitute “testimony” under this provision, such that the corroboration requirement adheres. On original submission a plurality of the Court held that, under the broadest dictionary definition of the word, viz: “evidence based on observation or knowledge[,]” an accomplice‘s out-of-court statement may be considered “testimony.” The New Merriam-Webster Dictionary (1989), at 741. The Code of Criminal Procedure provides that “[a]ll words, phrases and terms used [therein] are to be taken and understood in their usual acceptation in common language, except where specially defined.”
Of course the plurality was correct to begin its analysis with the text of
In isolation, a word can have various shades of meaning, and may even have several, mutually exclusive meanings. The State Prosecuting Attorney points to the word “conviction” as it appears variously in the Code of Criminal Procedure. He argues that no one would contend that, when the Code refers to “conviction,” it means “the state of being convinced: strong belief.” The New Merriam-Webster Dictionary, supra, at 175. It is, indeed, our conviction that this is not the intendment of the Code. The problem in the instant case is slightly different, of course. The debate here is not which of two different meanings to assign a word in a particular statutory setting. Here the question is whether to assign the word “testimony” its “broadest possible understanding,” as the plurality did on original submission, slip op. at 3, or a narrower, more technical, but also more common definition that is subsumed within the broader one. Though the question is, thus, slightly different than that posed by the State‘s example, the key to resolving it is much the same. We must decide whether the broader or narrower meaning is meant according to the context in which it appears in the statute as a whole.
It is sufficiently plain to us that the language of
AMBIGUITY
But let us assume, for the sake of argument, that the meaning of “testimony” is not as plain, even in context, as it appears to us to be. We would then have to admit that the statute is ambiguous; that it lends itself to “being understood in more than one way.” The New Merriam-Webster Dictionary, supra, at 40. In that event we would be authorized, under the Court‘s statutory construction analysis in Boykin, to consult “extra-textual factors” to resolve the ambiguity. 818 S.W.2d at 785. Such factors include the “object sought to be attained;” “legislative history;” and the “common law[.]”
The State Prosecuting Attorney directs us to Wigmore‘s treatise on evidence. Discussing the common-law rule that accom-
“The reasons which have led to this distrust of an accomplice‘s testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him, provided he helps them to secure the conviction of his partner in crime[.] * * * It is true that this promise of immunity or leniency is usually denied, and may not exist; but its existence is always suspected. The essential element, however, it must be remembered, is this supposed promise or expectation of conditional clemency. If that is lacking, the whole basis of distrust fails. We have passed beyond the stage of thought in which his commission of crime, self-confessed, is deemed to render him radically a liar. The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule.”
7 Wigmore, Evidence § 2057 (Chadbourn rev. 1978), at 417 (emphasis supplied). It is only when the accomplice takes the witness stand that the “supposed promise or expectation of conditional clemency” that justifies the rule becomes apparent. The danger that an accomplice may “fabricate” in any other context than in open court is simply not great enough to invoke application of the rule, because the self-interest is not so manifest.
Moreover, as noted in the dissenting opinion on original submission, slip op. at 4-5, an accomplice‘s out-of-court statement is objectionable unless made under circumstances sufficiently indicative of reliability that it may be admitted as an exception to the hearsay rule. In the context of this case that means that the out-of-court statements of Tammy Bingham were admissible, if at all, only as statements against penal interest, a hearsay exception that is subject to a corroboration requirement of its own, albeit different in character from the corroboration
ABSURDITY
In the view of both the court of appeals below, and the concurring opinion on original submission, the Legislature could not possibly have meant for
The same extratextual considerations that resolve any ambiguity in use of the word “testimony” also make it apparent, however, that to read
PRIOR PRECEDENT
In his concurring opinion on original submission Judge Baird also cited two opinions from this Court for the proposition that out-of-court statements from an accomplice witness must be corroborated under
Thus, there is some minimal force to Judge Baird‘s contention that our decision in this cause is constrained by the doctrine of stare decisis. Indeed, the United States Supreme Court has recently reiterated that “[r]espect for precedent is strongest in the area of statutory construction, where Congress is free to change the Court‘s interpretation of its legislation.” Hubbard v. United States, 514 U.S. 695, 712, 115 S.Ct. 1754, 1763, 131 L.Ed.2d 779, 792 (1995) (internal quotes omitted). However, neither Wilson nor Goodwin expressly holds that out-of-court statements of accomplices must be corroborated under the terms of the statute. The parties did not allude to these cases either on direct appeal or on original submission before this Court. The court of appeals did not cite them in support of its judgment. That no one has yet cited these cases is no surprise, for neither has ever been relied upon for the proposition that Judge Baird now cites them for. A quick check reveals that Shepard‘s Texas Citations lists a combined total of five later case citations for Wilson and Goodwin, only one of which relates to the issue at hand.
That case, Stovall v. State, 104 Tex.Cr.R. 210, 283 S.W. 850 (1926) (Opinion on rehearing), expressly rejected the argument that Wilson can be read to require a jury instruction that an accomplice‘s out-of-court statement must be corroborated, and cannot be used to corroborate another accomplice. See id., 104 Tex.Cr.R. at 224, 283 S.W. at 856 (“In [Wilson] we were discussing sufficiency of the evidence and not the propriety of an instruction. * * * If appellant‘s contention were sound, then in every case where one conspirator was called by the state as a witness, and the acts or declarations of other conspirators were proved by parties not connected with the crime, and these acts and declarations supported the testimony of the conspirator, who had given his evidence, a charge similar to that sought by appellant in the instant case would be demanded. We
More importantly, neither Wilson nor Goodwin (nor, for that matter, Stovall) undertook any analysis of the statutory language, as we have done today. Instead, in both Wilson and Goodwin the Court seems to have assumed, without ever squarely addressing the question, that when
Accordingly, we hold that the court of appeals was mistaken to conclude that the trial court should have given an instruction to the jury that Tammy Bingham‘s out-of-court statement must be corroborated before the jury could rely on it for conviction. By the same token, the court of appeals erred to hold that the trial court should have instructed the jury that accomplice witnesses cannot corroborate one another. Because Tammy Bingham did not give “testimony” within the meaning of
The court of appeals’ judgment is therefore reversed, and the cause is remanded to that court for disposition of appellant‘s remaining points of error.
MEYERS, J., dissents for the reasons stated in his opinion on original submission.
BAIRD, Judge, dissenting.
The majority‘s strained effort to reverse the judgment of the Court of Appeals results in the creation of three arcs which come together to form a perfect circle.
I.
The first arc is premised upon the untenable supposition that only in-court accomplice testimony need be corroborated because there is no chance that out-of-court accomplice statements are fabricated. Ante, 913 S.W.2d at 210-211. The majority provides no authority for this preposterous position because there is none. But, there is a wealth of authority holding just the opposite.
In-court statements are presumptively more reliable than out-of-court statements. Out-of-court statements have many dangers, e.g. the declarant might be lying, or might have misperceived the events which she relates or might have faulty memory, or her words might have been misunderstood or taken out of context by the listener. On the other hand, those dangers are minimized for in-court statements because the witness is under oath, aware of the gravity of the proceedings and subject to the pains and penalties of a perjury prosecution if the witness testifies falsely, the jury has the ability to observe the witness’ demeanor and the opposing party has the right of cross-examination. See, Williamson v. U.S., 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), and cases cited therein, and, Cofield v. State, 891 S.W.2d 952 (Tex.Cr.App.1994). Consequently, the majority opinion is based upon a fundamentally flawed premise, namely that out-of-court statements are more reliable than in-court statements.
Perhaps because it recognizes the flaw in the first arc, the majority attempts to divert attention from its opinion by attacking me and the opinions in Wilson v. State, 250 S.W. 1033 (Tex.Cr.App.1923), and Goodwin v. State, 307 S.W.2d 264 (Tex.Cr.App.1957). The majority states: “[t]he parties did not allude to these cases either on direct appeal or on original submission before this Court.” Ante, 913 S.W.2d at 212. And the majority notes the Court of Appeals did not cite either case. Personal attacks, while evidently in vogue, are out of place, especially when the judge is criticized for expending the effort to research a question of law pending before the Court.1 In fact, a judge would be remiss in his duties if he relied only on the cases cited by the parties. We are bound by our own precedent even when such is not discovered by the parties or the lower courts.
Aside from the personal criticism, the majority fails to explain why there was no criticism of Wilson and Goodwin on December 21, 1994, when our original opinions were delivered. Wilson and Goodwin are not “hopelessly in conflict” with Stovall v. State, 283 S.W. 850 (Tex.Cr.App.1926) (Opinion on rehearing). Ante, 913 S.W.2d at 212-213. Stovall has no bearing on the instant issue.
Stovall was a county commissioner charged with accepting a bribe from Bibb. Id. 283 S.W. at 852. Green, an accomplice witness, testified about several conversations between Bibb and Stovall wherein Stovall agreed to accept Bibb‘s bribe. Bibb did not testify. The trial judge instructed the jury that Green was an accomplice witness whose testimony required corroboration. However, the trial judge did not provide a similar instruction with regard to Bibb‘s out-of-court statements. Id. 283 S.W. at 852-854. On appeal Stovall contended the jury should have been instructed that Bibb was an accomplice and that his acts or declarations could not corroborate Green‘s testimony. Id. 283 S.W. at 856. This Court disagreed, finding the facts in Stovall distinguishable from Wilson because Bibb‘s statements were made during the course of and in furtherance of the conspiracy. 283 S.W. at 856. Statements made by co-conspirators were then, and are now, admissible. See,
III.
With the foregoing in mind, let me turn to the third arc which is the remanding of this case to the Court of Appeals.
On direct appeal, appellant contended the trial judge erred in admitting Tammy‘s out-of-court statements. The Court of Appeals did not address that point of error but will be forced to do so on remand. This point of error requires reversal because Tammy‘s statements were not admissible as statements against interest. In Cofield v. State, the State introduced the statements of Cofield‘s co-defendant. The Court of Appeals held the statements were inadmissible and we agreed. Cofield v. State, 857 S.W.2d 798, 805 (Tex.App.---Corpus Christi 1993), and, 891 S.W.2d 952 (Tex.Cr.App.1994). In such situations, statements against interests are admissible only if the declarant is the defendant on trial. They are not admissible at the trial of a co-defendant or accomplice. Id. 891 S.W.2d at 956. So Tammy‘s statements were not admissible under
However, an accomplice‘s out-of-court statements may be admissible if made in furtherance of a conspiracy. See,
So what the majority opinion stands for is that out-of-court statements of an accomplice do not require corroboration, but what the majority does not tell the reader is that such statements are not admissible. The result is that we are reversing the judgment of the court of appeals which reversed the judgment of the trial court, and we are remanding the case to the court of appeals knowing they will again reverse the trial court‘s judgment.
IV.
The three arcs are now in place and we can see a perfect circle. Nothing has been accomplished. Our jurisprudence is not enriched and we appear as the cat chasing its tail. The majority‘s tortured logic and strain to affirm appellant‘s conviction is to no avail.
There is an old equitable maxim that equity will not require the doing of a useless thing, nor will it lend its powers to accomplish a useless purpose, nor will it grant a decree which does not confer any real benefit or effect any real relief. Boman v. Gibbs, 443 S.W.2d 267, 272 (Tex.App.-Amarillo 1969). Therefore, even if the majority‘s premise was not fundamentally flawed and even if there were no cases on point requiring a different result, we should follow the spirit of that maxim and dismiss this petition as improvidently granted. Instead, we do a useless act and everyone here knows it. I can only throw up my hands in disgust.
For these reasons and those in my concurring opinion on original submission, I dissent.
OVERSTREET, J., joins this opinion.
MALONEY, J., joins part III of this opinion and otherwise dissents.