*1 OPINION DAVIS, Aрpellant, Brian Edward KELLER, Judge, delivered the of MeCORMICK, Court, Presiding in which MANSFIELD, PRICE, Judge, and WOMACK, Judges, joined. HOLLAND and The STATE of Texas. Appellant capital was convicted of murder No. 71513. and sentenced to death. Tex. Penal 19.03(a)(2) (Vernon § 1994); Code Ann. Tex. Texas, Appeals Court of Criminal (Ver- 37.071, § CRiM. PROC.Code Ann. art. En Banc. Supp.1997). Appeal non to this Court automatic. Tex.Crim. Ann. art. PROC.Code Jan. 2(h) (Vernon 37.071, § Supp.1997). Appel- thirty points
lant raises of error. We will affirm. point twenty-two appellant of error con- denying
tends that the trial court erred in his request to admit his former 804(b). Texas Rule of Criminal Evidence pre-trial suppression at a testified hearing. At trial sought he to introduce the transcript He ar- that, gued person if a under Rule has proceeding сoncerning testified in a a materi- issue, opportu- al and both have had an sides witness, nity to cross-examine the person invokes a and refuses testify, prior testimony should be admit- ted at trial. his Fifth did invoke right Amendment thus becom- him, ing, according to unavailable within the meaning of the rule. The trial court refused “If transcript, saying, to admit the that rule defendant, apрlies Appellate to a Court is going say to have to so.” decline the We invitation. 804(a) provides part that a declar- exemption
ant is not if his from unavailable party testifying procured offering testimony: the declarant’s A is not as a witness declarant unavailable refusal, exemption, of lack of claim memory, inability, or absence is due to the propo- procurement wrongdoing purpose of his statement for the nent attending or preventing the witness from Houston, Cunningham, appel- David for testifying. lant. 804(a). present In the Tex.R.CRIM. Evid. Hartman, West, Calvin Linda Asst. Dist. case, appellant exempt testifying Houston, Paul, Attys., Atty., Matthew State’s privilege against because he invoked his self-
Austin, for State. By invoking his Fifth incrimination. privilege, appellant procured exemption purpose preventing for the *2 invoca procure not the defendant’s testifying himself from as a witness. And State did privilege.1 Fifth Amendment appellant proponent prior of his tes- tion of his was Therefore, plain lan- and Davis involved timony. under Rodela rule, Rodela v. guage appellant persons not unavail- other than the defendant. of the was 845, (TexApp able. . —Hous 1992, pet.); no Davis Dist.] ton [1st appeals Two courts of have come to (Tex.App. — Eastland conclusion that a defendant who invokes his ref'd).2 Hence, exception pet. Fifth Amendment does not become apply. unavailability did not unavailablе under Rule 804 when he seeks to appellant was not “unavailable” Because prior testimony. offer his own See Castro meaning within the of Rule the trial (Tex.App.—San ton An refusing in to admit the court did not err ref'd); pet. io Dennis v. transcript appellant’s prior We (Tex.App. [1st Dist.] — Houston point twenty-two. of error overrule pet.). opin appeals’ no Both courts of expressly upon provision of ions relied judgment trial court. affirm the of the We 804(a) Castro, quoted Rule above. 168; Dennis, Likewise, S.W.2d at BAIRD, J., concurring opinion, a in filed Circuit, reaching Fifth the same conclu MEYERS, JJ., which OVERSTREET and sion, upon similarly provision relied a worded joined. 804(a). Rule Federal of Evidence United WOMACK, J., concurring filed a Kimball, States v. 15 F.Sd 55-56 & 56 n. 5 (5th Cir.1994); seе also v. Pe United States BAIRD, Judge, concurring. (2nd Cir.1996) (fol terson, 13-14 majority holding appellant errs in The lowing in interpreting Fifth Circuit’s lead meaning not within the of Tex. unavailable 804(a)). paragraph last of Federal Rule Ante, R.Crim. Evid. 804. 157. below, twenty- by for stated controlling
The cases cited the reasons authority easily distinguished. point are In of error should be overruled. second the defendant testified at his first privi- Testimony trial but his Fifth invoked Amendment Former lege at his second trial. A. The Trial Court (Tex.Crim.App.1992). At charged attempted with defendant’s second the State offered the defendant’s from trial. incarcerated in an administrative the first murder and County jail. exception unavailability segregation Id. The unit of the Harris found 804(a) implicated was аlso in the crime and did because the State His wife evidence, During separate facility. in a was the of the and the incarcerated opinion, concurring Judge Rule 804. 1. In his Baird con- the witness' former holding inapplicable that our that is example tends of "unilateral" An analysis. simply is devoid of That is untrue. against discussed in Jones v. works the State is analysis plain meaning Our is based on the 491-492 804(a). sentence of Rule The State does not last (Tex.Crim.App.1992)(witness who testifies right a control whether defendant invokes his proceedings but later Fifth invokes testify; the defendant does. privilege at defendant's trial is un procures exemption his own from tes- defendant but not unavailable to available to the tifying; Notably the Statе does not. absent from grant State could the wit the State because the any response Judge this Baird's is immunity). argument. Judge Baird further contends that application our of the rule is not even-handed. Similarly, Judge is reliance Jones Baird’s procurement provision in Rule is misplaced in that case was because the witness applicable simply it to thе State here because defendant, de- than the someone other party opposite the "State.” because —not procure absence. did not the witness’ fendant procure of a If the State were to the absence two, recog- witness, in footnote Jones fact as discussed then the State would be barred from unilaterally un- nized that a witness could using that witness’ former the hear- rule, say though the defendant under the rules. even the defendant could utilize available to (1) incarceration, exempted by ruling of the court on began develop- detectives testifying linking appellant his wife to ing evidence offense, concerning of his separate the instant matter and unrelated statement; or capital murder. and his wife com- by telephone during their confine- municated (2) persists refusing con- *3 conversations, During ment. one of their subject cerning the matter of his state- had visited learned the detectives despite an order of the court to do ment relating appellant’s to obtain evidence wife so; or Appellant request- the instant offense. then (3) memory to a lack of of the testifies meeting received a with the detec- ed and statement; subject or matter of his meeting, appellant gave At tives. (4) testify present or to is unable be videotaped to the instant offense. confession hearing because of death or then at the trial, appellant suppress Prior to moved to existing physical or mental illness or he con- the confession. asserted infirmity; or assumption that in ex- fessed based on the (5) hearing is absent from 1) change for the his wife would confession: has been un- proponent of his statement 2) immunity; receive he would be trans- procure or testi- able to his attendance 3) segregation; ferred out of administrative mony by process or other reasonable wife; a contact with his he would receive visit means. 4) and, a life sentence his wife would receive penalty. Because these instead of the death a wit- A declarant is not unavailable as met, appellant were not contended demands refusal, exemption, if claim of his The trial the confession memory, inability, lack of or absence judge suppress the motion to denied procurement wrongdoing or due to the At the confession was ad- confession. of the of his statement for published to the mitted into evidence and preventing the witness from purpose of jury- attending testifying. or (b) following are Hearsay exceptions.
After the State introduced the confession
The
evidence, appellant sought
into
to admit his
is unavailable
not excluded the declarant
testimony
pre-trial
suppression
witness:
as a
hearing to establish his confession was
(1)
Testimony giv-
Testimony.
Former
voluntary.
jury’s presence, ap-
Outside the
at anothеr
of the
en as a witness
priv-
pellant
his Fifth Amendment
exercised
proceeding, if the
same or a different
ilege
testify.
asserted the
not to
party against
whom
Fifth
invocation of his
offered,
an
and
had
now
and, therefore,
rendered him “unavailable”
develop the
similar motive to
pre-trial
testimony was admissible as
his
direct, cross,
examina-
or redirect
testimony”
Tex.R.Crim. Evid.
“former
...
tion.
804(b)(1).
judge
appel-
The trial
denied
testimony to be admis
In order for former
testimony from the
request
lant’s
and his
be satisfied.
prong
a three
test must
sible
pre-trial
hearing was not admit-
First,
must be unavailable
the declarant
twenty-second point of
ted at
trial. The
Second, the
testify
proceeding.
latter
at the
contends the trial court erred
de-
error
include the same
proceeding must
latter
pre-
appellant’s request
to admit his
nying
parties
issues as the former
charges,
trial
Third,
party against whom
proceeding.
must have had
Evid.
B. Tex.R.Crim.
motive at
an
and similar
provides
part:
Rule 804
proceeding
develop the former tes
direct,
(a)
timony
cross or redirect examina
unavailability.
on
Definition of
“Unavaila-
(Tex.
tion.
includes situations
bility as a witness”
Cr.App.1992).
which the declarant:
case,
parties
i.Declarant Unavailable
in the instant
charge
proceed-
the same at both
were
Unavailability
aas witness includes situa
ings.
exempted by
tions in which the declarant is
ruling
of the court on the
pre-trial
next
issue is whether thе
testifying concerning
subject
matter
hearing was the same at trial. “Neither the
statement;
persists
in refusing
proceeding,
theory
form of the
testify concerning
matter of
case,
sought
nor
nature of the relief
need
despite
statement
an order of the court to do
Only
particular
as to
be the same.
issue
804(a)(1).
so.
Evid.
Tex.R.Crim.
first offered must
which the
the dеfendant testified at his first trial but
substantially
similar to the issue
not to
At
elected
his second trial.
which offered
the current action.” Coffin
judge
the second
allowed the court
*4
reporter
portions
to read
of the defendant’s
1994)
Graham,
(citing M.
Federal Practice
testimony
direct and cross-examination
(Interim
§
and Procedure: Evidence
6793
the first
trial. This
the
Cоurt held when
784).
1992),
Edition
at
defendant
invoked his Fifth Amendment
suppression
The issue at the instant
hear
privilege against
during
self-incrimination
ing
admissibility
the
the confession.
the second
he became “unavailable” for
A confession is inadmissible where “the con
804(a)(1). Id.,
purposes of Rule
837 S.W.2d
voluntary, being
fession was not
induced
State,
Similarly
in Jones v.
843
promise, persuasive
pоsitive, by
and
one in
(Tex.Cr.App.1992),
S.W.2d 487
a witness tes
State,
authority.” Fisher v.
379 S.W.2d
grand
but,
jury
tified before the
at
State,
(Tex.Cr.App.1964) (citing Searcy
902
v.
invoked her Fifth Amendment
not
(1890)).
513, 13
Tex.App.
Appel
28
782
S.W.
testify.
to
The Jones
held
Court
the witness
directly
lant
addressed the issue
voluntari
Id.,
was unavailable.
843
490. See
pre-trial
when
he testified at the
hear
also,
State,
(Tex.
Davis v.
jury proceedings serve a different
States,
(citing
at 737
v. United
390
Simmons
Id.,
juries
jury proceedings, had a interro- fаll may also, reputation any other relevant issue the witness. United States v. gate (5th Brumfield, 445 Bros., Inc., inquired into.” Young Cir.1984) (“The Ann. art. (citing Tex.Code Grim. Proe. party against whom the testi- 37.07). words, may In the defendant mony govem- other emphasis supplied cated. unless otherwise indi- 3. All Evi- to the Texas Rules testify at the trial on the merits for a Practice: Guide ed.1993). (2d 160 Tex. dence: Civil and Criminal purpose. Gonzales v. limited (1954); and, 524, 525 Crim. argue Court’s Rather than over
Rubens 166 Tex.Crim. test attempt (1958).4 242, 244 recognize that nonhearsay, I would curiosity belongs the law’s case, appellant instant testified at shop. suppression hearing for a limited pretrial purpose establishing his confession was status, In that limited the State fully
did not have the cross- appellant. opportu-
examine sup-
nity appellant to cross-examine at the
pression hearing as it was not the same
would have been had elected to judgе Consequently, at trial. the trial admitting appellant’s testi- McGINN, did not err Ricky Appellant, Nolen mony suppression hearing. Accordingly, judgment I concur in of Texas. STATE however, majority, I would hold Rule No. 72134. simply does not inure itself to the
State’s benefit. Texas, Appeals of Court of Criminal En Banc. MEYERS, JJ., join OVERSTREET and Jan.
WOMACK, Judge, concurring. join only
I I Court’s write disagreement
add a comment about the be- Judge
tween the Court and Baird over the
meaning Bryan
(Tex.Cr.App.1992). Bryan is not worth their
time. trial,
Bryan had testified his first but
refused to at his retrial. The State part of his from the first deсiding
trial. whether was un- rule, hearsay
available under the an effort was contorted and
Court made
unnecessary. Bryan’s with, hearsay begin because was party-opponent. of a Texas Rule
admission 801(e)(2)(A). Treatise
of Criminal Evidence fallacy tactfully to this
writers have referred Bryan: “An alternative for reach- result,
ing the same which was also relied Appeals the Court of al., 801(e)(2)(A).” et 2 Texas S.Goode context, troduced the defendant’s In this if the State could not admit pre-trial testimony precluded the defen- also defendant’s permitted dant should not be to admit the same introducing this could evidence. Because the State not have