*2 house, and Morse and the at time PRESSLER, Before PAUL MURPHY directing language began victim abusive ROBERTSON, and JJ. SAM testimony states that her. her and a victim advanced toward toward PRESSLER, PAUL Justice. handgun top which was on of a bar Etter, Appellant, Nancy and co-defend- grabbed gun and told the house. She joint- ant, Morgan, advanced, were tried stop. appel- Richard Glen victim to As Holder ly. guilty The returned a verdict by was from behind lant claimed she hit appellant and a verdict of gun striking Morse fired Holder. and the Morgan. assessed Morgan appar- affair During entire punishment fifty years confinement. ently simply remained seated on the sofa in Holder, 27, 1978, William July David
On the den. victim, gunshot at a killed a was joint appel- In of their the course At the time Holder residence in Houston. a attempted Morgan lant’s counsel to call shot, were in the people was three other behalf, witness on her but lead- and the circumstances room witnessed objected Morgan and instructed attorney shooting shooting ing up testify. jury convicted not to After were Thomas The three witnesses itself. appellant witness), (the principal Allen Morse State’s was called a witness lead- Morgan. The facts appellant, for a new trial. Mor- appellant’s motion shooting are not itself ing up to disputed Morse’s version of gan’s testimony m., 8:00 a. dispute. approximately At shooting and confirmed the knock on the awakened a Morse was version. The trial court overruled he and the victim of the house which door lant’s motion for a new trial. Morse renting appellant. newly- Appellant contends now Morgan. Morse appellant admitted testimony Morgan warranted purchase appellant discussed Morse’s and that the trial court’s refusal new trial appellant. house from grant a new trial constitutes reversible conversation, the victim came of that course error. Morse that bedroom and told out his relies on Whitmore v. Appellant money for asking too much appellant was build and Morse could house and he Whitmore, a slim court price less she a house for than requirements obtaining argument en- out the asking. Apparently a heated upon newly-discovered newly- trial based appellant Neither nor sued. requirements acquired are morning. prior to that met the victim ever must reflect that: that the record point the differ. At this accounts newly-discovered evidence was enabled hold a hearing, question unknown to the movant at time parties counsel for all volved, and intelligently of his rule on the matter. However, nothing, so far as 2. The movant’s failure to discover the shows, this record until the State rested. his want then moved severance. diligence; *3 powerless anything point to do at that of materiality 3. The deny other than the motion. Since probably bring such as would about lant failed to the diligence, exercise trial different result on another fully justified denying court was in evidence admissible not is new trial. cumulative, corroborative, merely col- also record fails to show an lateral, or impeaching. of abuse discretion the trial in Id. at 896. granting a new trial under the third and of testimony Morgan was requirements. Appellant testified trial, known to before her Morgan’s testimony, did not. although meaning not within the usual of on given trial, motion for new “newly-discovered,” the words newly- it is although very vague and uncertain in many available evidence. The Court of Criminal respects, is identical in all material matters Appeals long recognized has newly- that appellant given to that of before the jury. newly-dis available evidence is same is, therefore, It Morgan’s obvious that testi Furthermore, evidence. covered is no there mony merely cumulative and corrobo testimony doubt of Morgan was rative. newly-available jury evidence after the Upon reading testimony appellant, the trial him. Thus the re first it is all difficult to why understand quirement of is met. apparently refused to believe her. However, appellant has to failed Moreover, it certainly was not an abuse of satisfy diligence requirement. part discretion on the judge to not file a motion for prior severance to trial grant upon refuse a new trial based although her apparently did. vague and uncertain testimony Morgan. Further, at the the motion for fact, judge trial been would have new appellant’s counsel established justified finding Morgan’s testimony was that he and Morgan’s dis attorney had false, just as the had testimony cussed the client of each testimony to be. give would and that “there no materi judge The trial must determine if al discrepancies between them.” discovered or available evidence trial counsel strenuously both asserted is material. It be probably must true and guilt. there was no of Morgan’s evidence weight probably of such produce appeal acknowledges State’s counsel on Byrd different result at another trial. Van evidence Morgan’s guilt, to show (Tex.Cr.App.1980). presence other than his time of According to the Appeals, Court Criminal offense, flight was his sur failure to whether the new evidence is true following render some two weeks is a judge. Ap determination for the trial commission the offense. pellant’s point first of error is overruled. question presented Another severance, appellant filed be- ground second of error began, setting fore the alleges trial out her belief that the denying trial erred in insufficiency co-defendant, against of the evidence the motion of Mor Richard her desire an gan, to have availa- instructed verdict of not unavailability thereby depriving appellant ble as a witness and his ab- testimony. sent granting presumed of the motion. This court is proscription against “merely posed to overrule a motion good cause Wyatt v. or corroborative evidence” in cumulative verdict. instructed the Whitmore involving in a case upon Based S.W.2d 597 presumption, Dictionary Black’s Law defines holding and this fendants. our above error is over- evidence as additional evi- ground of “cumulative” appellant’s second i.e., or point, to the same a same ruled. dence repeating in substance and witness The conviction is affirmed. effect, Blacks adding prior or (4th Dictionary Law rev. ed. Justice, MURPHY, dissenting. supple- is “Corroborative” opinion respectfully dissent already given and which ments evidence which relies on filed confirm, i.e., addi- strengthen or tends grant of a new trial four-prong test for the of a different character tional evidence “newly availa “newly discovered” Id. point. supports same forth in ble” evidence *4 supplied by co-defendants Evidence State, (Tex.Cr.App. 896 570 S.W.2d at the same in the same incident volved among the cases cited disparity necessarily be corroborative time would in as to the fourth authority cumulative, poses serious and/or test, i.e., that the evidence not prong of that when, ever, if in a case such questions as to cumulative, corroborative, collateral or be here, evidence from a later me for two reasons. impeaching, disturbs to a co-de- would be available in the First, the semantic distinctions trial. currently fendant prongs. cases create two different dissenting my An reason for additional case, 209 Hernandez State v. 507 S.W.2d proce- majority’s imposing position is State, (Tex.Cr.App.1974), cites Powell 502 required nowhere or- requirement dural authority (Tex.Cr.App.1973) as 705 S.W.2d in all diligence prescribed der to show is found to evidence which proscribing tests newly found evidence described cumulative, and not be admissible situation would indeed ex- above. Another corroborative, impeaching. 507 collateral or ist where defendant knows his/her authority on which S.W.2d privilege and fendant will invoke his/her Tex.Jur.2d Powell relies is a citation to 41 that in such a case the code further knows (1963). Williams v. New Trials § procedure required criminal (Tex.Cr.App.1974), string S.W.2d beginning of the trial. severance at cited with Hernandez employ does not where as in the case Justice is not served The test in Williams requires prong. the testimo- us a defendant is denied before newly dis- (1) is in fact that: the evidence of the other witness to the offense ny covered; (2) diligence lack of caused no procedural to a non-existent mandate. due sooner; that evidence to discover failure Moreover, strictly adhere to the failure true and a (3) justify rules can never the deni- procedural reached. probably would be different result important rights. constitutional I al of cited with at 482. A third case 504 S.W.2d reversed and urge this case be Hernandez, Myers Williams procedur- a new trial and the remanded for applies (Tex.Cr.App.1975), S.W.2d re- al rule demanded in Williams three-prong cannot, however, in future cases. quired at 309. There- above. 527 quoted here. justify application its three cases fore, cites two out of four-prong test authority for its apply such a test. do not which I find the second factor due to disturbing possibility is the
majority opinion or discovered evidence im- heavy burden rarely
will surmount