Johnson v. State

guilt in the case is contrary therefore the law and evidence and must be set aside.

The judgment of the Appeals Court of reversed, judgment of the trial court is

reversed and the cause is remanded to the entry

trial court for the judgment of a acquittal. supra, Boozer v. Ex parte (Tex.Cr. Reynolds, 588 S.W.2d 900

App.1979).

It is so ordered. WHITE, J., concurs the result.

McCORMICK, P.J., BERCHELMANN, J., dissent.

STURNS, J., not participating. JOHNSON, Appellant,

Eddie James Texas, Appellee. The STATE of No. 70177. Texas, Court of Appeals Criminal En Banc. Nov. 1990. Rehearing Overruled Feb.

OPINION

CAMPBELL, Judge. Appeal is taken from a conviction for capital murder. TEX. PENAL CODE 19.03(a)(6)(A)1. ANN. finding After § appellant guilty, jury returned affirma findings tive special to the issues under 37.071, Article TEX.CODE CRIM.PROC. Punishment was assessed at death. Appellant points raises twelve of error. challenges: He the trial court’s denial of appellant’s pre-trial motion to evi- dence seized a search of his trailer house; permitting the trial court’s State to call his stand as a witness, presence jury forcing her to claim her to not testify against husband; the introduc- during tion of his wife’s taken a pre-trial hearing; the admission into evi- during dence of cocaine seized the search trailer; the admission of evi- (appellant’s analysis dence blood and of his blood) warrant; pursuant seized to a search hearsay testimony admission of from a regarding witness statements made a victim; prior grand jury admission of witness; impeach a the admis- sion, during punishment phase, pho- tographs depicting mur- brother; finally, sufficiency dered and of the evidence to sustain his conviction for capital murder. willWe affirm. 29, 1987, morning September On the Jerry Deputy Sheriff Hutson discovered body Hispanic of an female near John- Walston, Jr., Rockport, William G. Carl County. son Road in Aransas The victim Lewis, Christi, E. Corpus for appeared dragged to have been down the gunshot road and had also suffered two Bridges, L. Atty. Thomas Dist. and Mi- Responding wounds to the head. to Offi- Gilmore, chael E. Welborn and John S. assistance, Deputy cer Hutson’s call for Attys., Sinton, Huttash, Asst. Dist. Robert Spaulding Sheriff William arrived at the Austin, Atty., State’s for the State. promptly scene and discovered the bodies girl young Hispanic of a white male and a a Murder, transaction; 19.03(a)(6)(A), (A) Capital per- 1. § states in the same criminal part: indicted, tried, tinent Appellant was and convicted ( n ) person Virginia A commits an offense if he com- for the murders of Cadena and Eliza- mits murder as defined under Section 19.- beth Galvan. 02(a)(1) of this code and: ( n ) person per- one murders more than son: body. Village from the home in Portobello trail-

short distance first trailer Virginia park. Investigating found bodies were later identified as er officers car, Cadena, year daughter old Eliza- of the which was ten blood interior Galvan, Magee, and David who had to be of the victims. Cade- beth determined blood, hair were on lived with and Galvan for several na’s and tissue found Cadena car, undercarriage indicating years. Magee’s together feet were bound dragged had struck and looped with double strand wire twice that Cadena been Magee’s also around the ankles. hands were Officers found a underneath car. long telephone tied behind his back with a can seat crushed Coke between driver’s palm print cord. Cadena and Galvan had not been the console. A on the can by person holding bound. had been made the can re- Analysis with blood their hand. Joseph Rupp, Dr. Medical Examiner palm print appellant’s. vealed that County, performed autopsies Nueces also found six .25 caliber Officers semi-au- According Rupp’s the three tes- bodies. addition, casings car. In tomatic inside the timony, as a two Cadena died result of drippings discovered on the blood were head, gunshot wounds to the died Galvan leading ground from the car in the di- gunshot as a result four wounds park. rection of trailer abdomen, Magee died result of a as a victims, gunshot home, nursing wound to the head. The the roof of On officers however, gunshot had suffered other found blood soaked towel the warm- Rupp wounds. was of the opinion up top wearing that Cadena had been be- Magee Cadena and had shot with In a dumpster been fore she was murdered. home, weapon, a .38 caliber had nursing that Galvan officers behind found can, weapon. been shot a .25 A bloody bloody caliber Budweiser beer socks drug Magee’s body screen on rags. dump- test showed and some blood-soaked a Magee that had cocaine and in his park, heroin ster at the trailer officers found a system. Rupp pair Wrangler jeans also observed a faint needle blue of size 38-34 and Magee’s right mark on pair forearm. a of Fruit of the Loom Blend Golden jeans, underwear. On the officers found Captain Dean Smith the Aransas hairs, Negroid appellant’s similar to hair. County Department charge Sheriff’s inwas jeans and the underwear had been investigation of the into the deaths of in blood had soaked but been later washed Cadena, Magee. and com- Galvan After soaking were wet when and found. pleting site, work at the Johnson Road Meistobach, Cadena, and Smith other officers their Pam a continued co-worker investigation Cadena, Apart- Square Magee Jackson learned that Galvan and ments, the residence of the supplied victims. had been murdered. Meistobach apartment concerning appel- victims’ had been A with information ransacked. officers bloody appeared relationship struggle Magee. have occurred lant’s with Cadena and apartment. in the apartment suspected Inside told that She further officers she officers appellant found: wire and cord from a tele- that had committed murders. this, phone Magee’s appellant to that used to made Upon similar bind officers feet; bullet; trial, spent hands and primary suspect. a .38 caliber At Meistobach their appellant’s appellant Magee a Budweiser can with fin- that both had beer testified it; telephone get gerprints they along on and a her that did not with with told appellant’s finger- had hos- cord removed and with each other. Meistobach observed appellant it. prints apart- The blood confrontations between found tile Cadena, appellant ment was David where told “Tell determined be that of Cadena up you’re causing Magee. old man to shut your “Well, you think I problems” me don’t by employ- Cadena’s car was discovered anything, do but will.” will Nursing ees of Aransas Pass Home home, a parking ap- September officers obtained nursing lot of the On appellant’s arrest. proximately appellant’s from Officers two blocks warrant pistol In- surrounded trailer home. that he had taken the .25 caliber appellant step- and his burglary Riojas’ side the trailer were residence and wife, Appellant’s Michael. Elaine given pistol son had to Dionicio Pena to Johnson, living was not in the trailer at pistol that he sell. Pena testified sold time, due marital difficulties. Offi- Theresa Holmes testified appellant out trailer. cers ordered of his appellant had offered to sell a .22 Ap- Appellant complied and was arrested. pistol approximately one .25 caliber pellant transported and Michael were to the week before the murders were committed. police Appellant station. refused to con- grand jury, Before the Holmes testified sent to a search of the trailer. At the time had offered to sell her a .38 arrest, appellant of his had cut between trial, pistol. repudiated caliber At Holmes finger right the thumb and index of his grand testimony regarding the jury .38 hand. cut was later shown to be This pistol pistol. caliber No .38 caliber type consistent with the of cut that can be ever found. caused recoil when a the slide .25 caliber pistol approxi- The .25 caliber found pistol is fired. semi-automatic mately one week after the murders were gave On October Elaine Johnson con- committed, roadway near a close to the sent to search her and trailer to spot where the victims’ bodies were discov- Thompson Linda of the Aransas Pass Po- Parker, civilian ered. Charles ballistics Department. lice Officers searched the expert Corpus Police De- Christi pair trailer on 1 and found a October partment, tested two removed from bullets splat- appellant’s work boots which were they body and determined that Galvan’s analysis tered with human blood. Later pistol fired from the .25 caliber had been splatter pattern revealed that blood bought from Pena. had pattern the work boots matched the on the trial, At Patricia Huleh and Roxanna dumpster. Wrangler jeans found in the Safety Payne, Department of Public foren- bedroom, found, also Officers serologists, sic testified as to several as- pair Loom Blend of Fruit of the Golden In summa- pects physical evidence. pair underwear of the same size as ry, their indicated that: nearby dumpster. found in the A holster and feet of wires used to bind hands with the initials “J.R.” was found under- telephone Magee ripped had been from the appellant’s neath the trailer next to vacant residence; in the victims’ the underwear trailer. The holster was later identified dumpster and jeans and found Jerry Ramsey .38 as the holster to his appellant’s trailer had been boots found The revolver and holster caliber revolver. washed; consist- jeans contained blood had been stolen from his vehicle several Magee; body ent with that of Cadena and Taped the murders. weeks before jeans on the and underwear hairs found tape meter duct to bottom of electric those of Cadena and were consistent with trailer, for officers found a box Magee; appellant’s boots contained blood containing packet cocaine. Officers also Magee. that consistent with following seized the items from gun cleaning kit for a .38 trailer: a suitable Leucht, ap- a co-worker of Diane former gun cleaning kit pistol; caliber a suitable Magee at Ser- pellant and Grasso Oilfield duet pistol; for a .25 caliber a roll of silver relationship vices, as to the work testified sitting tape; photograph appellant a and Appellant appellant Magee. and had holding beer on a horse a can of Budweiser “yard working as a man” at Grasso been left hand. his Magee was hired months before for several apparently Appellant “yard as foreman.” trial, Riojas that he At Arturo testified promoted upset was that he had not been pis- had owned a .25 caliber semi-automatic Magee. Appellant foreman and blamed pistol caliber had been tol and that .25 Magee’s to follow or- repeatedly refused burglary stolen of his residence “get even with made threats to ders and approximately year one before the trial. one month after Davilla, Magee.” Approximately stepson, testified Riojas"’ Gilbert fired, hired, ever, that the .25 caliber Magee appellant be- Michael testified was was “bugged” office. handgun cause he had Leucht's ballistics ex- Titan identified Appellant against filed a lawsuit Gras- then pert weapon used to kill Parker as Magee claiming so racial discrimination. Galvan, handgun that he not the same was lawsuit, appellant appar- in his but assisted by appellant. being as remembered owned ently given assistance was not volun- this Rogers, who lived in the Jackson Jerry tarily Magee “was as afraid of” Sep- on Apartments, that Square testified Hoskins, manager the Porto- Steven thirty and eleven tember 28 between ten park, that on Village bello trailer testified gun- p.m. what like one he heard sounded evening after the were com- murders from the direction of the victims’ shot come appellant got mitted as out of he watched Rogers watched the victims’ apartment. taxicab, dumpster appel- to a near went for from his front window al- apartment trailer, put a bag lant’s of trash hours, never observed most four more but dumpster. This somewhat unusual nothing enter or leave and saw anyone normally stepson saw appellant’s Hoskins Rogers claimed to have tele- unusual. family dump- take the Michael trash report phoned Aransas Pass Police to ster. police responded gunshot, but never Goff, driver, Johnny a taxicab testified telephone call was no his and there record p.m. he September that on 1987 at 6:30 of his call. picked up appellant park at his trailer other defense witnesses testified Several took him to a convenience next to the store relationship as to the work between Square Apartments, the vic- Jackson where they Magee, stating all that had lant and Appellant wearing tims resided. hostility disagreement no be- observed “fairly pair jeans that time. new" blue at appellant Magee. tween Appellant pay did not Goff for the fare paid Appellant time. thirteen Goff error, appellant In his twelfth day for for dollars the next that fare and challenges sufficiency evidence another that owed him. beyond a reason- appellant’s guilt to show Johnson, Appellant’s wife, testi- Appellant argues Elaine doubt. Michael able fied on at a direct cross-examination re- Johnson’s pre-trial hearing motion p.m. trailer ten turned to his before short, evidence. In Ms. Johnson Rogers September Jerry 28 and approximately testified that three weeks gunshot single coming heard a that he prior September she purchased new apart- the direction of the victims’ from pair 38-34, Wrangler jeans, blue size p.m. thirty ten and eleven ment between appellant, weight. gained he had because have night, shows that it would been spousal After Ms. Johnson invoked her appellant to have been both impossible for against her husband apartment at in trailer and the victims’ his trial2, introduced, objec- at the State over Rogers gunshot. heard when tion, portions of her from the pre-trial hearing relating purchase The standard review for suffi of jeans. of blue in criminal case is ciency of the evidence a “whether, reviewing after the evidence in Appellant in his called nineteen witnesses prosecution, most light favorable Appellant’s stepson, Michael defense. trier of could have found rational fact any Johnson, their appellant testified that left beyond the crime essential elements of 28, six September trailer 1987 between on Virginia, doubt.” v. a reasonable Jackson nine p.m. and seven and returned between 2781, 12, 307, n. 2789 319 99 S.Ct. 443 U.S. p.m., appellant and that went ten (1979); L.Ed.2d 560 n. 61 sleep thirty thirty ten and eleven between Griffin State, (Tex.Cr.App. S.W.2d appel- p.m. further Michael testified 1981). should not handgun. How- Circumstantial evidence lant a .25 caliber owned 504(2)(a). 2. TEX.R.CRIM.EVID. See note dumpster by appellant, a different standard of review were found a

be tested appellant’s park. Body than direct evidence. Jackson v. Vir- hairs of trailer evaluating is correct for ginia standard with those of Cadena and hairs consistent circumstantial both direct and evidence. jeans and un- appellant were found on the (Tex. 654 S.W.2d Wilson boots, Appellant’s derwear. seized from rehearing). Cr.App.1983)(opinion on How- trailer, consist- his were stained with blood ever, a conviction based on circumstantial Magee pattern ent with of and in a evidence cannot be sustained if the evi- splatter jeans. consistent with the every dence does not exclude reasonable evidence, conclude that Based on this we guilt hypothesis other than the of the de- any appel- fact could find rational trier of only fendant. Proof which amounts to a doubt, guilty, beyond lant a reasonable suspicion probability guilt or is insuffi- the murders of Cadena and Galvan. addition, cient. each circumstantial evi- support presented at trial does not evidence partic- dence case must be evaluated appel- than a reasonable inference other ular facts of that case to determine the guilt. Appellant’s point of lant’s twelfth sufficiency support a of the evidence error is overruled. finding guilt. Johnson v. (Tex.Cr.App.1984). error, point In his first as- allowing serts the trial court erred against appellant The State’s case through during made circumstantial evidence. its case State to call Nevertheless, error, ap- we find that the evidence in chief. In his second light when viewed in the most favorable to pellant asserts the trial court erred al- support appel the verdict is sufficient to lowing the to introduce cross-exami- capital lant’s conviction for murder. appellant’s wife which nation hearing. pre-trial was taken He The evidence shows that took argues prior testimony that the exceeded spot apart- near the victims’ taxicab to scope proper cross-examination and night ment on the of the murders. In the that he did not have a similar motive apartment, Magee’s blood was found develop testimony. his wife’s copious quantities along spent .38 Appellant’s fingerprints caliber shell. Johnson, wife, purport- Elaine apartment were found in the on a Budweis- edly gave her written consent to a search telephone. Magee’s er beer can and on a lived with of the trailer where she hands and feet were bound with wire taken motion Appellant lant and her son. filed a telephone. from the evidence seized as a result Magee and were shot with .38 Cadena search, of his claiming that the search handgun was shot with caliber and Galvan le- trailer was made without the effective handgun. A .38 caliber Colt a .25 caliber give gal anyone competent to consent of Ramsey Jerry revolver was stolen from pre-trial At the held consent. weapon was found and the holster for suppress, appellant called his the motion to next to underneath the trailer testify only on the issue of wife to Appellant purchased trailer. the .25 cali- consent, given namely it was vol- whether handgun Titan used to murder Galvan. ber tes- untarily involuntarily. Ms. Johnson arrested, appellant had a cut on his When examination, reserved direct but tified on right have caused that could been testify Ms. privilege to not at trial. her recoil of a .25 caliber semi-automatic. slide solely regard in to mat- Johnson testified found blood soaked ear was Cadena’s voluntary nature of her relating ters to the a near trailer with trail of blood appellant’s trailer. On consent to search A leading in of the trailer. the direction State, cross-examination, objec- the over palm print appellant’s bloody can with Coke tion, regarding Ms. Johnson questioned in the car. was found marriage and about problems with pair a of underwear, purchase, appellant, for of Wran- jeans and of Blood soaked Ms. Johnson jeans, size 38-34. gler blue type apparently and size as worn same

281 to call a de error for the State bought she had in fact such reversible answered that witness, if jeans spouse as a this pair a of fendant’s convey as to to done in such a manner trial, At the State named Ms. Johnson as spouse, if al impression that the jury the in. possible a witness and she was sworn rebutted de testify, would have lowed to the trial court that Appellant then informed testimony previously given. Stew fensive privi- Ms. Johnson wished to exercise 148, (Tex.Cr. 153 587 S.W.2d art v. testify, pursuant Rule lege to not to State, 482 S.W.2d App.1979); Johnigan v. 504(2)(a) Rules of Texas Criminal see, 209, (Tex.Cr.App.1972). Also Wall chief, During its case in Evidence3. 59, (Tex.Cr.App. 417 S.W.2d called Ms. Johnson as a witness. to 1967)(reversible compel spouse objection presence and in the of the error Over jury, forced to invoke her force her to Ms. Johnson was take the witness stand and privilege testify against appellant. not only purpose privilege where the claim thereafter, intro- Immediately the State jury use calling spouse was to have the pre-tri- portions duced the of Ms. Johnson’s guilt as a circumstance of her refusal testimony relating to al cross-examination against spouse). accused problems purchase her marital and the 504(2)(a) provides spouse Rule jeans. as a only privilege to not be called general privilege of The testimonial dis witness for the State. absolute spouses origin. Originally is of medieval has qualification of former article 38.11 disqualification, privilege an absolute removed, privi replaced with a been today variety in survives of more restrict- for the lege to not be called as witness history evidentiary ed rules. For a brief only may by asserted State that development spousal of the or husband- spouse. The defendant has no defendant’s privilege, see wife Trammel v. United prevent spouse his or her from power to States, U.S. S.Ct. testifying for the State. Trammel Unit (1980). L.Ed.2d States, supra, 100 S.Ct. ed 445 U.S. Texas, privileges the testimonial at 914. spouses are in Rule TEX.R. embodied rule, privilege general As a claims 504(2)(a)4 departure Rule is a CRIM.EVID. knowledge should be made without rule, 38.11, previous from the article TEX. 513(b), jury. Rule TEX.R.CRIM. CRIM.PROC., disqualified CODE which EVID., cases, jury proceedings “In states: testifying against spouse one from another conducted, practica- to the extent shall be spouse, except spouse where ac ble, making of claims as to facilitate the against the famil so cused of certain offenses 38.11, knowledge of the y.5 privilege Under former article it was without by (repealed represented CRIM.PROC. art. 38.11 Johnson was 5.TEX.CODE Ms. attorney regard by in to the invocation of her Criminal Evidence effective Texas Rules of spousal privilege testify 1, 1986) pertinent part: not for the State. September stated in See note 4. shall, case, any wife Neither husband nor made one as to communications TEX.R.CRIM.EVID., 504(2)(a), Privilege 4. Rule married. Neither husband the other while against spouse, not to be called as a witness shall, case, marriage any after the wife nor states: ceases, any as to be made witnesses relation privilege. spouse General rule of marriage made while the re- communication called as a accused has a not to be except where one or existed case lation pro- witness for the state. This rule does and a is on trial for an offense the other state, spouse testifying from for the hibit the made or communication declaration objection by spouse the accused. A even over husband or the husband wife to the is sub- who testifies on behalf of an accused justify goes the offense. extenuate or ject provided cross-examination may, and wife in all criminal The husband 610(b). by an accused to call his Failure other, actions, ex- for each but witness, be witnesses spouse as a where other evidence they provided, in no cept shall as hereinafter spouse to rele- indicates that the could matters, testify against a criminal each other in subject case proper is a of comment vant prosecution. by counsel. States, 343 F.2d Fratello v. United San 513(a) on the jury.” Rule forbids comment Cir.1965) (“Courts (5th always have except provided privilege, invocation of practice compelling a frowned on the 504(2)(a). to claim testimonial spouse of an accused 504(2)(a) the State to Rule allows jury.... presence in the of the privilege of the defendant to comment on the failure availability of the any genuine doubt about spouse, when “other evi call his or her testimony prosecution the can al such spouse the could testi dence indicates that interroga preliminary ways be settled a Such comment is fy on relevant matters.” oath in [spouse] the witness under tion of permitted is not allowed because the State Melton v. Unit jury.”); of the the absence spouse, the defendant’s and such to call Cir.1968) States, (10th ed 398 F.2d inability spouse might allow the to call the (“The a witness prosecution should not call to the jury to draw an inference adverse jury it knows presence in the of the when However, if the State is State’s ease.6 a the witness will invoke and concedes that defendant’s always allowed to call the Ber Labbe v. privilege.”); marital valid privilege spouse the invocation of and force (“There man, 621 F.2d (1st Cir.1980) for allow jury, in front of the the rationale ques prosecution’s a are situations where the defendant’s failure to ing comment on knowing tioning a the witness of witness spouse disappears. The call his or her to answer and will assert will decline spouse’s privilege front of invocation may so privilege may improper. This be be more, necessarily jury, without almost prosecutor ‘makes a conscious when the inference ad compels jury to draw an case out flagrant attempt to build its verse to the defendant7. use of the arising from of inferences [the] ‘infer privilege’ held that it is error or where the Federal courts have testimonial refusal to answer to call the defendant’s ences from a witness’s for the Government weight prosecution’s to the the invoca- critical spouse as a witness and force [add] subject to cross-examina jury. case in a form not privilege presence in the of the tion of Goode, Wellborn only jury permissible.” S. O. Apparently, permissible is such comment is Sharlot, of Evi- testimony Guide to the Texas Rules spouse’s will be & M. when the witness (Texas 513.1 at 357 spouse § dence: Civil and Criminal to the accused or will involve adverse 1988). 504(1), Practice confidences. See Rule TEX.R. marital CRIM.EVID., privi- Confidential communication privilege that claims of Rule 513 ... indicates 504(2)(a) privilege lege. is "not to be made, practicable, outside where should be for the state.” The defen- called as witness jury. Although presence Rule 504 of the right spouse to refuse to does not have dant’s may prosecution comment that the indicates testimony pursuant give exculpatory spouse the accused to call on the failure of 504(2)(a). privilege spousal Rule To allow accomplish testify, be able to it should not give exculpa- spouse to refuse to the defendant's calling spouse and then result the same tory called the defense when privi- spouse’s jury claim of hear the let the right of a crimi- be inconsistent with the would hope jury infer- lege will draw compulsory process for obtain- nal defendant against The fact that ences the accused. ing VI and favorable witnesses. Amendments privilege expressly grants "not to be However, XIV, United States Constitution. privilege not rather than a as a witness” called may privi- spouse properly accused assert significance testify surely here. has some lege for confidential marital communications. Schlueter, Texas Rules of & D. H. Wendorf Thus, spouse’s the defendant’s when (1988). Ed.) 504(2)(a) (2d § Manual Evidence involve confidential mar- will be adverse or will Indeed, may it be re- circumstances in some communications, present the failure to such ital to call a witness error for counsel versible testimony "may properly be viewed as the demonstrating jury that a purpose Goode, 0. responsibility of the accused.” 33 S. 513(b). being § claimed. Id. is Sharlot, Guide to the Texas Wellborn & M. prosecutor improper to call an for the [I]t and Criminal 504.7 § Rules of Evidence: Civil ascertaining spouse first without accused’s (Texas 1988). Practice jury presence outside spouse spouse object. asserts If will may government not then privilege, the agreement that the commentators are in 7. The privilege to spouse as to force the general so analysis accurately call the states the above open [504(2)(a) court. be claimed rules “The structure of the two rule. Evidence, (commenting 504-14 suggests only ¶ 2 Weinstein's together com- and ment, taken 513] 513(b)). Standards 505 Federal compelled invocation before and not might jury the any inferences unfairly [prejudices] the de cut short and thus tion ” States, Ms. Johnson’s invocation citing Namet v. drawn from fendant.’ United have 186-87, 1151, 179, 1154- subsequent 83 S.Ct. her silence. privilege 373 U.S. and of her (1963)); 55, L.Ed.2d 278 United States Thus, implicate actions did the State’s (11th F.2d Chapman, 866 Labbe, supra in concerns identified Cir.1989) it is im (“[A]s general matter flagrant- Namet, did not supra. The State permit [spouse] a witness to proper to attempt its case consciously to build ly and privilege in front of the claim a testimonial from Ms. Johnson’s on inferences drawn intention not to jury where the witness’s privilege, nor did infer- of her invocation beforehand.”). testify is known add crit- from her invocation ences drawn weight the State’s case. Whatever ical to 513(b),how The State under Rule occurred when State may error have ever, may practica show that it is not still witness, was appellant’s wife as a called privi spouse to invoke the ble to allow harmless the introduction rendered jury. In lege presence of the outside testimony, then termi- previous which case, legit the State claims a the instant jury would possibility nated the purpose calling Ms. Johnson as a imate calling ap ap- argues that additional inferences adverse witness. The State draw gave jury opportunity of error is pellant’s pellant. Appellant’s first why her was be to understand overruled. We ing read rather than delivered live. Having that the violation determined fur argument unpersuasive, find this spousal privilege was rendered harm- per erred in ther find that the trial court less, it now determine whether we must mitting the to offer the witness State error for the trial court was reversible jury privi presence of the over the claim of to cross-examine allow the State lege. The mere assertion that call State’s the issue matters irrelevant to be- wife on ing Ms. Johnson as a witness would aid hearing, and pre-trial fore the court at

jury’s understanding of their trial tactics is portions of that testimo- to then introduce undermining rationale for not a sufficient trial. ny efficacy spouse’s privilege of a to not called as a witness the State. trial court has discretion though Even we find error the trial pre-trial case for a hear any “set criminal allowing to call court State upon its mer ing it is set for trial before spouse lant’s as a witness and force the 28.01. art. its.” TEX.CODE CRIM.PROC. privilege jury, invocation of front hearing is to pre-trial purpose analysis harm this im- apply we will mat dispose of certain judge enable the 81(b)(2). proper action8. TEX.R.APP.P. delays and thus avoid prior ters to trial State, 414 Bosley v. during the trial. case, Ms. the instant Johnson denied, (Tex.Cr.App.),cert. by the was called as a witness State 172, 19 L.Ed.2d 162 88 S.Ct. U.S. jury; invoked her in front of the (1967). pre-trial suppression At immediately but the then introduced appel hearing the sole issue was whether testimony from the portions of her voluntarily consented to a wife had lant’s relating her marital pre-trial hearing appellant’s trailer home. her and search of purchase problems appellant, consent was not that his wife’s To establish jeans Con pair of a of blue her to voluntarily given, appellant called inclined to sequently, jury if the had been hearing. Appellant’s pre-trial at his could speculate about what Ms. Johnson by the State then cross-examined wife was testimony against appellant, offer in largely irrele matters which were about prior of her State’s introduction Instead, 38.11, cally error. reversible constitute note even under former article We applied appropriate. analysis when spouse disqualified harm where the defendant’s (Tex.Cr. Aguilar 715 S.W.2d calling testifying, of the witness from the State’s App.1986). jury's spouse presence not automati- did Thus, question vant to the issue whether consent to before us now is the evidence adduced whether voluntarily given. search through the State’s cross-examination 104(a),TEX.R.CRIM.EVID., applies Rule consequence appellant’s wife was of to the questions, including preliminary to the ad- determination of the action before the trial missibility of evidence. The second sen- pre-trial hearing. court at the In the in 104(a), respect of Rule with to deter- tence case, appellant’s stant was cross-ex mining preliminary questions relating to regard her mari amined the State to admissibility, frees the trial court from the tal relations with the and the evidence, except relating to rules those purchase pair Wrangler jeans aof blue privileges9. for her husband. Her concern ing purchase jeans of the blue was not 504(2)(a), rule, Rule which is a any consequence to the de conceivable provides spouse that “a who on testifies termination of her consent to whether subject of an accused to behalf is cross-ex- given voluntarily. search cross- 610(b)”, provided by amination as Rule examination, pre-trial hearing at a on a 610(b) Rule TEX.R.CRIM.EVID. states evidence, suppress motion to of a witness may on “a witness be cross-examined spouse privilege to not who retains her any any relevant issue in the matter trial, testify at must be limited to those ease, including credibility.” evi- Relevant questions consequence that are of direct dence is defined Rule TEX.R.CRIM. at that heari the matter be determined EVID., having any tendency as “evidence Testimony ng10. which does not tend to any to make the fact that is of existence of any probable make more or less fact of consequence to the determination of the action, in consequence to the this case—the probable probable action more or less than determination of the motion to it would without the evidence.” This be evidence seized the consent search sequence provision demonstrates that the trailer, Thus, it irrelevant. 504(2)(a) allowing of Rule cross-examina- for the trial court to allow the was error spouse necessarily tion of a must witness appellant’s wife as State to cross-examine interpreted suppression be within the bounds of Rules to matters irrelevant to the 610(b) hearing. 401. and

9. 10. Preserving Texas Rules of Texas Rule vance must be taken inio Wright the Federal Rules of are to make on this matter. See would do relevant to motions to of the Texas Rules of Criminal cability ings (1987). There are judges the basis of the support make his Evidence, vant might did not intend the Rule to be read While the [T]he Furthermore, evidence, though be overturned preliminary would away Error, determination on the basis of irrele- apparently 104(a) judge Graham have concluded that rele- [104(a) logical it was finding. Rules, Evidence and Articles with the need for apply Rule is not “bound” sufficiency of the evidence to is identical Rule ] sense Wellborn, facts, St.Mary’s L.J. would them in most cases. The probably expected Procedural no suppress. 104(a) Obviously Evidence. Professors such pre-RuIes an of Rule consideration, such permit appellate if read Evidence: a determination Article I of the by the Rules of as those facts pre-trial We note that Matters, the drafters 104(a). Texas cases 104(a) court on literally. judge literally, and XI Appli- if we hear- and If such ters to be pose tion on though "discovery” is included in a list of mat- sary into a en the hearing, article 28.01 was not intended to broad- mination of relevant to the hearing. al ny presented C. Procedure judge Article would not evidence be While Rule er to question Wright to determine proceeding scope power were the any disregard ^[*] 28.01 determined & K. § conduct of then is not the existence of the would dispense this, matter of of such any phase of the trial. support should be exercised. 104(a) might at a preliminary fact n Graham, relevant, does case, every allowing ... the matters at issue at the pre-trial Thus, evidence and testimo- hearings impose ^[*] since irrelevant evidence subject consequence Rules, pre-trial preliminary 21 Federal Practice the court at a there would be little full ^[*] witness hearing limits on the so as to turn to cross-examina- theory permit the requirement but rather when blown questions hearings. n at a finding. should discovery. pre-trial ^[*] pre-tri- neces- deter- them pow- pur- Al- be fingerprints Although, weapons; we conclude that the tri permitting objects apart- erred in in the victims’ palmprints al court irrelevant car; pre-trial hearing, at the stains lead- ment and Cadena’s blood cross-examination must now determine it was in ing we whether from car the direction Cadena’s trailer; error to allow the to intro appellant’s proximity reversible State appellant’s portions pre-trial duce at trial of the cross- apartment night on the the victims’ testimony appellant’s examination motive; wife. murders; made appellant’s threats 81(b)(2); See TEX.R.APP.P. see also Har by appellant; analysis to two of the victims (Tex.Cr.App. 790 ris v. S.W.2d 568 appellant’s of blood found on boots 1989). analysis and hair found on under- of blood dumpster near his wear discovered only conceivably aspect harmful trailer; matching analysis of the victims’ appellant’s testimony wife’s was her state- hair; injury blood and and an purchased pair ment that she had arrest, lant’s hand at time of his consistent 38-34, Wrangler jeans, blue size for her with that caused the slide recoil of one approximately husband three weeks before Thus, weapons. in of the murder evaluat- Magee, the date of the murders of Cadena in ing probable impact “the of the error slight- This made it Galvan. light of existence of the other evi- ly probable more that relatively new 587, dence,” Harris, supra at we find be- splattered jeans dump- in blood found yond the error appellant’s park ster at trailer were in fact a reasonable doubt that note, however, appellant’s those of the We made no convic- contribution way only that this no punishment. tion or to his TEX.R.APP.P. appellant jeans evidence that linked 81(b)(2). Appellant’s point second of error dumpster. Appellant found in the had is overruled. throwing something been seen into the error, appellant In his third as- dumpster, apparently which was not his denying his serts the trial court erred practice. Appellant usual had been seen evidence, arguing motion to wearing relatively pair jeans new voluntary the state showed neither consent night of the murders. Hairs consistent Appellant nor a valid search warrant. ar- appellant with those of were found on gues developed the facts as at his blood stained underwear that was found pre-trial hearing show that dumpster. splatter the same The blood voluntarily consent the search of did not pattern jeans on the was consistent with her and trailer and that pattern found on work mere submission to a claim consent was a boots, and indicated that the boots and the authority. of lawful

jeans together had been worn at the time suppression hearing pre-trial At the they stained. were Blood consistent following Appellant facts were elicited. Magee jeans with that of was found on the Village trailer at the lived his Portobello and the boots. Johnson, wife, park with Elaine his trailer spouse’s testimony Even if the concern- Johnson, stepson. his At the and Michael ing purchase jeans were blue search, however, Ms. time of the Johnson consideration, from our the re- excluded staying a friend for about a had been with maining evidence is both cumulative jointly The title to the trailer was week. overwhelming appellant’s guilt. See appellant and his wife. held Arsdall, generally 475 Delaware Van Thompson of the Aransas Linda Officer 673, 1431, U.S. 106 S.Ct. 89 L.Ed.2d 674 Department primary Pass Police (1986); Clark, 570, Rose v. U.S. with Ms. Johnson. Accord- police contact (1986); S.Ct. 92 L.Ed.2d 460 Milton Thompson’s testimony she conducted ing to Wainwright, U.S. S.Ct. Ms. Johnson. (1972). three “conversations” L.Ed.2d 1 that the We note Septem- held on The first conversation was presented incriminating evidence concern- death; day appellant was arrested. ber ing: ballistics and the causes of police station went appellant’s possession of one of the murder Ms. Johnson son, Michael, pick up around 4 police a.m. to after work. she arrived at the When who had taken station, been to the station when presented she was with a consent time, At was arrested. if search form and told that she did not Thompson advised Ms. Johnson of the sign police get it the a search war- would charges against her and that husband she Johnson, According rant. to Ms. officers investigation was not under and had not again questioned had her son before she anything wrong. day, done Later that arrived at the also tried to station. She Thompson work, called Ms. Johnson at but prior contact three or four times stopped causing when she learned this was signing the consent to search but was problems. day, Thompson The next went signed him. then unable to reach She to the store Ms. where Johnson worked and proviso consent to search with the that she police asked her to come to the station be at the trailer when it was searched. Ms. got after she off work. Ms. Johnson went Johnson testified that at the time she work, police to the station after was search, signed the consent to she was on presented with a consent to search form (tranquilizers) medication and under the eventually signed Thompson it. testi- care of a doctor. Ms. Johnson testified fied that she told Ms. Johnson that that she had since reconciled her differ- police wanted to search the trailer and that ences with that had caused her to they sign would need her to a consent to move out of their trailer. According Thompson, search. she did Bruñe, Ranger Texas Charles who assist- get not tell Ms. Johnson that she would investigation, prior ed in the that testified if give search warrant Ms. Johnson did not “very coop- to the search Ms. Johnson was Thompson her consent. further testified changed erative” and that her attitude had 1, that on October Ms. Johnson was “much uncooper- she now since then and that more calm” and had “much more under- ative. standing going of what was on” than on day Thompson arrest. question whether a consent to a “[T]he if ap- did not know other officers had ‘voluntary’ search in fact or was the proached Ms. Johnson in connection with product coercion, express of duress or or the consent to search. implied, question is a of fact to be deter- pre-trial Ms. testified at Johnson totality mined from the of the circum- living she appel- had not been at her and Bustamonte, stances.” v. Schneckloth prior lant’s trailer for about a week to the 227, 2041, 2047-48, 218, 412 U.S. 93 S.Ct. gone police murders. had first She State, (1973); 36 L.Ed.2d 854 v. 758 Juarez 29, September receiving station on after 772, (Tex.Cr.App.1988). 775 “It is S.W.2d Thompson. Thompson call from and her only by analyzing all the circumstances husband, officer, police questioned also a an individual consent that it can be ascer- her for two or three hours. She was told voluntary in fact it was or tained whether go not to back to the trailer or call Schneckloth, supra 412 U.S. at coerced.” lant. Ms. Johnson went to the convenience 233, Supreme at 2050. The court 93 S.Ct. store returned where she worked. She emphasized examining all the that “[i]n morning police early station the next if surrounding circumstances to determine pick up her son who had been taken to the coerced, in fact the consent was account appellant. According station to Ms. police subtly must be taken of coercive Johnson, police approxi- made her wait for questions, possibly as well as the vulnera- mately they one-half hour before released person subjective state of the who con- ble her son. 229, at 93 S.Ct. at 2049. sents.” Id. again Ms. Johnson was not contacted un- has held that con This Court 1, receiving began til October when she freely voluntarily given must sent be telephone Thompson calls from at work. Furthermore, effective. to be considered Thompson After she told not to call her at work, proof upon the State to the burden of is Thompson came into the store and convincing by clear and evidence police come to the station show asked

287 175, State, voluntarily giv- mony. Taylor v. 604 S.W.2d freely and the consent was State, State, v. 548 (Tex.Cr.App.1980); 484 S.W.2d 177 Clark Paprskar en. v. Bumper (Tex.Cr.App.1977). Since (Tex.Cr.App.1972); 737 see S.W.2d 888 543, 548, Carolina, sup finder at a 391 U.S. 88 S.Ct. trial court is the sole fact North (1968). 1788, 1792, is not at liber pression hearing, 20 L.Ed.2d 797 Consent this Court physically psychologically sup any finding must not which ty be to disturb Paprskar, supra. Consent can- ported by coerced. the record. Green by “showing S.W.2d 700, more (Tex.Cr.App.1980), established no cert. de be acquiescence nied, to a claim of lawful au- than 102 S.Ct. 454 U.S. thority.” Bumper, supra (1981); 88 S.Ct. McKittrick v. L.Ed.2d 258 Thus, (Tex.Cr.App.1976). at 1792. finding supports a where the record may ineffective if Consent freely and voluntar consent to search was by a show of force or other coer induced will not disturb ily given, this Court Lafave, surroundings. W. cive See finding. 8.2(b). evaluating Search Seizure § consent, may validity a court stress case, In the instant the testimo in an envi that the consent was obtained conflict ny Thompson and Ms. Johnson police ronment with few officers and with points, including the number and on several weapons, v. out the use of United States between time of the conversations held (6th Cir.1985) (con Williams, 754 F.2d 672 court, however, The trial could them. given presence in the of one officer sent any of ei choose to believe or disbelieve weapons view); in Lowery and no v. testimony of testimony. ther’s Since the (validity (Tex.Cr.App.1973) 499 S.W.2d 160 clearly establish that Ms. Thompson would sup of consent to search residence not freely to search was Johnson’s consent by ported evidence where consent was ob given, and because the trial voluntarily presence in tained of five officers with any part to disbelieve or court could choose hands). pistols in shotguns their How testimony, the record all of Ms. Johnson’s ever, response given a consent to search in support the trial court’s is sufficient to to a threat to seek or obtain a search finding freely and volun that consent upheld voluntary. warrant has been as Appellant’s point third tarily given.11 Raines, (8th United States v. 536 F.2d 796 error is overruled. Cir.1976); Boukater, v. United States error, In his fourth (5th Cir.1969); F.2d 537 v. United States admitting in the trial court erred asserts Castillo, (9th Cir.1988); 866 F.2d 1071 blood, analysis of his which evidence of 810 F.2d 973 Stallings, United States v. search pursuant from him to a was seized (10th Cir.1987); but see v. United States argues that the affidavit warrant. He (con Faruolo, (2d Cir.1974) 506 F.2d 490 probable cause to contained no warrant curring opinion) (“Any intimation that the In of the warrant. support the issuance automatically warrant will be issued should error, appellant point of asserts his fifth the announce be considered coercive as was over- that the same search warrant warrant.”) ment of an invalid authorizing seizure of his blood. broad provided affidavit no argues He The trial court is the sole fact Ap- for seizure of blood. probable cause finder at a on a motion to the search warrant pellant contends that: may choose to or evidence and believe requisites article comply testi- did not with any or all of the witnesses’ disbelieve Although her son. pre-trial were made to arrest testimo- threats 11. Even if all of Ms. Johnson’s events, court, ny by totality by unfolding upset trial Ms. justifiably were believed surrounding her consent of the circumstances she was unable to did not Johnson to search do not indicate that consent happening and what was what was understand given police. coerced Her consent was present she Her insistence that be at stake. only presence one two officers who was executed indicates when the warrant addition, apparent made no show of force. the situation. she understood already and no her husband had been arrested 18.01, TEX.CODE.CRIM.PROC.; issuing magistrate the affi- The task of appellant; common deci practical contact with the affi- is to sense ant had no make whether, given sion all the demonstrate his circumstances ant did not the basis of him, set before there forth in the affidavit knowledge as to the information in the probability is a fair that contraband or evi affidavit; and the affiant did not vouch for found in particu dence of a crime will be credibility of his sources of informa- place. must be lar The affidavit more than tion, Amend- all violation Fourth conclusory gives a “mere statement ment, United States Constitution and Arti- magistrate virtually no basis at all for Texas cle Constitution. § making regarding judgment probable support The affidavit of the search presented magistrate cause.” The must be authorizing warrant seizure of information” allow that “sufficient hair, blood, saliva, pubic and head and con- cause; probable individual to determine following accu- tained statements and mere “his cannot be a ratification action sations: the bare of others.” conclusions Illinois 29, 1987, September the bodies of 1. On Gates, 213, 238-39, S.Ct. U.S. Magee, Cadena Galvan were discover- 2332-33, (1983). magis L.Ed.2d 527 they ed it determined that all died and was trate not be bound standards should gunshot Hairs were as a result wounds. beyond such as a reasonable doubt or proof in the hands of discovered all of the vic- preponderance of evidence. tims. magistrate’s proba should sole concern bility. Gates, supra; Bower Investigation revealed that denied, (Tex.Cr.App.1989), S.W.2d 887 cert. con- previously physical had had verbal and — 3266, U.S.-, 106 109 L.Ed.2d S.Ct. Magee. frontations with (1989). 611 28, evening of September 3. theOn up picked appellant at his taxicab driver In Eisenhauer cert, denied, and took him residence Jackson (Tex.Cr.App.1989), 488 U.S. Square Apartments 848, 127, (1988), where the victims lived 102 L.Ed.2d 101 109 S.Ct. 118. apartment number this that Article 9 of the Court held § Texas Fourth Amend- Constitution was found in the vic- 4. Human blood “in ment of Federal Constitution are all apartment. tims addition, In same.” aspects material Fingerprints lifted from the tele- 5. Supreme this found that the Court’s Court phone apartment victim’s matched in the “in no way repug- decision in Gates was those of 18.01,” nant to Article TEX.CODE CRIM. Aran- 6. car was found at the Cadena’s PROC. Home, Nursing from sas Pass two block’s Article inquiry The 18.01 con- ultimate was appellant’s residence. Human blood cause, probable cerns the existence found in the car. which must be established ‘sufficient’ Aguilar facts. v. Tex- and ‘substantial’ jacket soaked towel 7. A blood and blue States, as; and Illi- nursing Spinelli United on the roof of the were found change do not the basic nois v. Gates jacket pants matched the Cade- home. The only things The underlying rule. wearing. na was changed have are measures which appellant A observed throw- 8. witness created to in ar- Supreme Court aid his something dumpster into the near ing riving of the existence a determination at residence. probable show facts to of sufficient dumpster revealed a A search of the 9. Gates, In the measure is the cause.... un- pair pants and men’s blood soaked Only the the circumstances. totality of Negroid hairs were imbedded derwear. determining if the basic methodology of the underwear. changed, not has rule has been satisfied Gates, Article rule itself. like “negro” basic male. Appellant is a 18.01, continues the demand for ‘suffi- and citizens. None of the information was cient and substantial facts.’ obtained from confidential informants. Thus, magistrate rely was entitled to (citations omitted). Id. credibility of the affiant and his reliability of the affiant reliability sources and the of the informa- part and his sources of information are supplied tion Appellant’s affidavit. “totality of the circumstances” that the fourth points and fifth of error are over- magistrate making should evaluate in his ruled. probable magis cause determination. A trate, however, rely is entitled to on source error, In point his sixth reas- citizen, supplied by average information an probable serts that there was no cause to since, many police informants, they unlike support issuance of the search warrant au- likely produce are “much less false or thorizing blood, seizure of his hair and sali- untrustworthy information.” Jaben v. va, showing there was no of a States, United 381 U.S. 85 S.Ct. good exception faith proceed with the (1965); L.Ed.2d 345 see Esco v. blood, seizure of hair Appellant or saliva. (Tex.Cr.App.1982). 668 S.W.2d 358 asserts magistrate wholly aban- applies same rule to law enforcement offi judicial doned his making proba- role in his magistrate may rely cers. The on the affi However, ble cause determination. as we police davit of a officer based on his knowl already have determined that the search edge knowledge or the of other officers. validly warrant proba- issued based on “Observations of fellow officers of the cause, ble magistrate we find that the did engaged Government in a common investi judicial not abandon his role and no show- gation plainly are a reliable basis for a ing good exception of a faith required. applied warrant one of their num Appellant’s point sixth of error is over- Ventresca, ber.” United States v. U.S. ruled. 85 S.Ct. 13 L.Ed.2d 684 (1965). error, his seventh Appellate court review of the suffi asserts the trial court admitting erred in ciency of an affidavit is not a de novo analysis evidence of of chemical magistrate’s review. The determination of blood, arguing that there showing was no probable given cause great should be defer that his blood was seized as a result of a by reviewing Gates, ence supra court. facially Appellant valid search warrant. 236, 462 U.S. at 103 S.Ct. at 2331. “[T]he complains that there showing was no that traditional standard for review of an issu validly the warrant was any mag- issued ing magistrate’s probable cause determina brief, appellant istrate. In his asserts that long tion has been that magis so as the trial, presented there was no evidence at trate had a ‘substantial basis for ... con findings, the trial court made no cluding]’ that a search would uncover evi signatures on the affidavit or on the dence wrongdoing, of the Fourth Amend warrant were authentic. requires 236,

ment no more.” Id. at 103 2331, trial, citing States, S.Ct. At called Jones v. United State Dr. Wendell 257, 271, 725, 736, 362 U.S. 80 S.Ct. 4 blood, Roberts to in connection with (1960), L.Ed.2d 697 overruled on other samples saliva and hair seized from 83, grounds, 448 U.S. 100 S.Ct. 65 appellant’s objection, lant. Over Roberts (1980). Nonetheless, L.Ed.2d 619 “courts samples testified that he took must conscientiously continue to review the blood, pursuant saliva and hair to a court sufficiency of affidavits which warrants (search warrant). pro- order Roberts then are issued.” 462 Id. U.S. at 103 S.Ct. duced the search warrant and the State at 2333. Appellant objected it in offered evidence. case, to admission of the search warrant on the

In the instant affidavit support requisites that the search warrant was basis article 18.01 and based supplied by police on information officers 18.02 had not been met. af- challenges a defendant die in his discrimination suit

When Johnson search, validity of and the intro ter fired? he was facially warrant, valid search duces phone A. conversa- don’t know. The proof go is on defendant to burden only you that he tions that —I can tell with evidence to show the invalidi forward phone he hang up would and what State, Rumsey the warrant. ty of say would after that. (Tex.Cr.App.1984). The search S.W.2d Q. maybe And I’m misunder- Okay. was valid on its face. The war warrant standing something. there a dis- Was following: rant contained the the sworn be- crimination suit filed Mr. Johnson detailing of Officer Dean Smith affidavit fore fired? he was cause; constituting probable the facts A. Not that I know of. The conversa- that an offense had been com statement telephone were tions—the conversations seized; mitted; description of the items to Mr. after terminated. Mr. Johnson was description the location and a where Magee, frequently to Mr. Johnson called could be Thus after his chal items found. say you “I and he would can’t talk to appellant lenge, the burden was on to show now,” hang right about that or he would Appellant the warrant was invalid. “Oh, up phone say, and he he’s would presented no argues that evidence was even,” mad, get gonna he’s or— on the signatures show that affidavit hearsay presented We with similar are two Appellant, how and warrant were valid. Appellant by Magee. made statements ever, any point does evidence statement, timely but objected to first validity of war record to contradict the object failed to to the second statement. Therefore, appellant has failed to rant. may dis Although the two statements invalidity to show the meet his burden is tinguished, effect of statements both Appellant’s warrant. seventh im convey the the same. Both statements error is overruled. get pression appellant threatened error, eighth point In his Magee. even is well settled “[I]t admitting court erred asserts trial cured an error admission evidence hearsay regarding statements in else same evidence comes where the Magee. made the deceased objection; defense counsel where without Leucht, every allegedly time inadmissi object Diane a must At trial the State called is offered.” Hudson v. Magee ble evidence former co-worker of (Tex.Cr.App.1984); testi- 675 S.W.2d Oilfield Services. Leucht at Grasso relationship generally the work fied about Brasfield other, Magee. Appellant (Tex.Cr.App.1980), overruled appellant and between (1987); see also however, 739 S.W.2d 813 complains, grounds, that Leucht erro- was (Tex.Cr. State, 785 378 testify as to statements Willis v. S.W.2d neously allowed to — denied, U.S.-, 111 App.1989), Magee respect his cert. she heard make with (1990). There 112 L.Ed.2d objec- S.Ct. 234 relationship with Over fore, this preserve has failed to tion, appellant Leucht as follows: testified Appellant’s point error for review. of Gilmore, Q. [By prosecutor] Mr. What is eighth of error overruled. point Magee you? did Mr. tell error, appellant as- point ninth of Magee that his A. Mr. told me Mr. Johnson admitting side, trial court erred in serts that the he was on and that he was said our testimony There- him, grand jury the of witness get and that he going to with even Holmes, due arguing that he was denied sa going to him. get was right of to con- process deprived the and note, however, that on redirect exami- We front cross-examine the witness. nation, objection Leucht without testified as follows: Holmes. called Theresa The State appellant that knew talking Holmes testified she Q. I’m [By Mr. But Gilmore] about fired, appellant had asked and that she was about after Mr. Johnson Holmes, According gun. purchasing a Magee helping Ed-

you said—was David

291 inculpatory gun willing only possibly he was sell testi- appellant had a additional her, transcript by but she not remember if it was statement mony could was a weapon. then or .25 The State appellant a .22 caliber her talk about Holmes that with her Holmes she recalled asked whether guns the occurred about week before had that grand jury testimony where she stated the the murders. date of gun appellant had a .25 caliber and another that not

gun. Holmes testified she could timely objection To be an must a .22 if it was or .25 caliber now remember opportunity,” be raised “at the earliest gun, previously and that she had testi- ground objection be “as soon as told her had fied had that he State, comes Polk v. 729 apparent.” gun. attempted The then another State (Tex.Cr.App.1987), 753 re S.W.2d impeach prior Holmes with inconsistent part grounds, on other versed in grand jury. statements made before (1988), Cooper citing S.W.2d read, objec- State had Holmes without (Tex.Cr.App.1973) S.W.2d tion, pertinent portions grand of her (Tex. Sierra v. indicated; jury testimony, had which she Furthermore, Cr.App.1972). previously as purchase of a .25 au- discussed caliber noted, objection required every an time appellant; had tomatic presented. inadmissible evidence is Error automatic; shown a .25 caliber in allowing inadmissible evidence is cured appellant had told her that he had also when the same evidence comes without testimony gun. a .38 caliber After further Hudson, objection elsewhere at trial. su Holmes, from then into offered pra. transcript grand evidence a Ms. Holmes jury testimony. objected Appellant case, appellant In the instant ob copy admission of the grand Holmes’ jected transcript testimony, when a only jury testimony, on the basis that was he already jury, which had been read right denied the to confront Holmes at was The record offered State. Appellant’s grand jury hearing. objection appellant was clearly reveals that informed was overruled. reading grand was from her Holmes Thus, jury testimony. appel find that we

Appellant object failed to when object ground lant as failed soon as copy grand jury read from of her Holmes objection apparent became and his later testimony12, objected but then when objection objectiona ineffective transcript was as State introduced a of that same testimony. already in front of the The record reveals ble material grand jury testimony jury in form of testimo read Holmes’ direct Holmes essentially transcript ny. Appellant’s ninth error is the same the State. overruled. offered (1) jury testimony clearly Testimony given Testimony. Grand as a is objection Former inadmissible trial, proper when a is raised the same or a witness at another 801(e)(1)(A), opposing counsel. TEX.R. proceeding, party against different if the pertinent part: CRIM.EVID. states offered had is now an whom (e) Hearsay. Statements are Not A Which develop opportunity and similar motive the hearsay statement (1) if— is not direct, cross, testimony or redirect exami- Prior Statement Witness. The declar- nation. ant subject statement, trial is testifies at the or 801(e)(1)(A) grand specifically excludes Rule concerning the to cross-examination testimony category jury from the of statements (A) and the statement is inconsist- Thus, non-hearsay. grand testimony jury is as testimony, given ent with and was his under hearsay subject to the rules as classified as subject perjury penalty oath hearing trial of at a 804(b)(1) testimony is such. Rule the former proceeding, except grand or other Rule, however, hearsay. exception does jury proceeding ... encompass grand jury offered not TEX.R.CRIM.EVID., 804(b)(1), in Rule states defendants, against since a defendant does not pertinent part: develop opportunity to the of have an (b) Hearsay Exceptions. following are grand jury witnesses. not as excluded if the declarant is unavailable a witness. (Tex. error, point appellant as- 557 S.W.2d

In his tenth lender point Appellant’s tenth admitting Cr.App.1977). into the trial court erred serts cocaine, containing error plastic bag is overruled. evidence during the search of seized error, appellant point his eleventh the Appellant contends that State trailer. admitting, the trial court erred asserts custody he exercised or did not show that phase, a series of punishment the cocaine, the and that co- control over depicting corpse photographs evidence of an extraneous caine constituted Appellant argues lant’s murdered brother. exceptions of Rule not within the offense showing he made no that the State 404(b),TEX.R.CRIM.EVID., inall violation guilty or substantially linked with was right process. his to due depicted photographs. in the the offense During the search of trailer tri- During punishment phase of the plas- curtilage, officers discovered a and its al, Raymond Lieutenant the State called cocaine, taped containing “Baggie”, tic Chicago Heights Police Hartman of the appellant’s trailer. testified that on Department. Hartman he called to plastic January had been introduced

When State Andrew John- cocaine, objected investigate the homicide of bag containing son, identi- appellant’s brother. Hartman as follows: accurately photographs as fied a series of honor, object that Your we MR. LEWIS: in the kitchen depicting the homicide scene identified as things these have not been Johnson, An- where at the home of J.D. cocaine, have prejudicial, are murdered, and also iden- was drew Johnson either his linked to Mr. Johnson been photograph depicting victim tified a control, any possession, custody, or emergency room. The State hospital act, object and we to their affirmative Martinez, testified Linda who then called in this case. admission his appellant and had been that she knew objection THE COURT: Overrule testified that she was girlfriend. Martinez ground. January living appellant in trial was The cocaine admitted at her that he had killed appellant told when Thus, offense. evidence of an extraneous admitted Appellant his brother Andrew. objection trial appellant’s legal basis for pantry for his that he laid wait the evidence was should have been that Martinez’s and shot him. After brother uncharged prove an extraneous offered to photo- offered testimony the State scope of permissible offense not within graphs into evidence. 404(b) to show that and was offered objection the admission of Appellant’s generally. Appel a criminal as follows: photographs proper objection at failed to make this lant honor, to all these Your MR. LEWIS: assuming arguendo that trial. Even Honor, exhibits, object Your we offered prove an affirm adequately failed to pic- if these legal grounds that on the appel link the cocaine ative between being offered to show Mr. are tures lant, 612 S.W.2d see Pollan v. apt some connection with Johnson’s objection (Tex.Cr.App.1981), crime, that wrong or misconduct or other evidentiary basis for did not address the fact of inadmissible because they are Thus, this evidence. exclusion of itself, crime, all that is admissible. comport appeal does not now raised on Otherwise, in their de- pictures these objection made at trial. Since with the and entire- gross and obscene piction are opportunity an judge did not have trial purpose probative and no ly prejudicial uncharged offense on an extraneous rule in this case. [sic] appel nothing presented for objection, is objection at trial ground of legal Appellant’s stating one objection An late review. were photographs themselves that the support a differ was used to theory may not be prior crime of the State, as evidence inadmissible legal theory appeal. Rezac ent the crime was fact of only the (Tex.Cr.App.1990); Zil 782 S.W.2d affirmative, appeal, appellant admissible. On judge asserts issues in the the trial substantially not link the State did appellant’s punishment assessed at death depicted with the crime in the 37.071, by injection. lethal Art. See V.A.C. Thus, photographs. point now raised Appeal C.P. is to this Court automatic. See appeal comport objec- does not with the 37.071(h), 40(b)(1), supra, Art. and Rule Rezac, supra; tion made trial. Zillen- Tex.R.App.Proc. der, supra. Appellant’s eleventh of Testimony pair was adduced that a of

error is overruled. Wrangler jeans blue and Fruit of the Loom judgment of trial court is af- underwear, both of which were of the same firmed. type apparently by appel- and size as worn lant, and of both which were found to have STURNS, JJ., BERCHELMANN and blood, been in soaked but which had also participating. washed, apparently recently been were CLINTON, Judge, dissenting. dumpster found at the of a bottom located recognized privilege

A highly valued appellant’s near trailer home. scrupulously protected in our own trial, chief, during At in State’s ease rules of criminal evidence in and elsewhere testify, State called towife my the Rule Law. In judgment testimo- required and she was to refuse to ny erroneously obtained breach of the presence jury. objec- of the Also over spousal privilege may not then be used to tion, the State had admitted into evidence a render the Beyond error harmless. portion transcription majority falls analysis back on a harm testimony gave wife’s that she on cross-ex- it disapproved in Harris v. pretrial hearing amination at the that was (Tex.Cr.App.1989): at 587 conducted on sup- motion to appellate court should not determine “[A]n press evidence that had been seized the harmfulness of an simply by error ex- police residence, pursuant from his to his amining whether there was overwhelming testimony wife’s consent to search. This support evidence to guilt.” defendant’s reflected that and his wife had Certainly, majority fails to direct its separated approximately one week before focus on emphasized the factors the murders were committed “all because methodology Harris, outlined in at 587- [appellant] doing he laying was was around house, watching and not television diminishing To guarantee our working getting ... and fat ... and that spousal privilege by overruling the second purchased appellant pair she had a new error, point of I respectfully dissent. Wrangler jeans [approximately blue three weeks the murders before were committed] TEAGUE, Judge, dissenting. gained weight.” “because he had Johnson, Eddie James appel- henceforth lant, charged by indictment majority opinion agrees and con- with jury victed committing points the mur- lant that his first two of error Virginia (See ders of Cadena and page slip Elizabeth Gal- should be sustained. 14 of van, were mother daughter. opinion.) agree. Appellant’s points who An- individual, Magee, (1) other David judge who lived error are as follows: trial “[T]he Galvan, permitting Cadena and prosecutor was also mur- erred [at trial] night question. dered on the Appellant’s Because to call towife the stand as a the murders of Cadena and presence were witness for the and in the Galvan alleged jury Appellant object have been committed forced same criminal transaction day on the same and forced her to claim her question, (2), this privilege,” caused the two murders to error “[I]t harmful capital become the offense of murder. See for the Court to allow the State cross-ex- V.T.C.A., 19.03(a)(6). Penal Appellant’s Code After amination § jury special [sic], during pre-trial hearing, answered the submitted taken

294 481, 604, States, 73 97 against trial him in that said 344 U.S. S.Ct. introduced at ed (1953). scope prop- of L.Ed. 593 prior exceeded the Ap- and by cross-examination the State er on the spousal privilege The is based motive to pellant did not have the similar Law, Jury In re Grand Investi Common spouse’s testimony.” The ma- develop his (9th Hugle, F.2d 863 Cir. gation of however, erroneously opinion, con- jority 1985), grounds. and not on constitutional under that the error was harmless cludes Lefkowitz, F.2d See United States v. 81(b)(2), disagree I Tex.R.App.Pro. Rule 824, (9th Cir.) denied, 449 U.S. cert. this determination. (1980). See also 101 S.Ct. 66 L.Ed.2d 27 judge record that the trial reflects Kirk, “Evidentiary Privileges and Meeker instruct that no infer- jury declined to the (Paper and de Federal State Law” Under drawn the fact ence could be from the Advanced Criminal Law livered spousal wife had appellant’s invoked 1990). Course, July, privilege testify against not to 504(2)(a), Texas Rules Criminal presence. jury’s Evidence, day version present which is the The record reflects that after privilege, Texas’ “husband-wife” pursuant an arrest war- arrested to was cause in effect when this was which was rant, challenged validity of not which is tried, spouse expressly provides: “The cause, police attempted to obtain in this to be privilege the accused has a his wife’s to search his and his consent state.(My a witness called as residence, home, refused to a trailer he but 513(b) expressly pro- emphasis.) Rule also However, day after give his consent. cases, shall jury proceedings “In vides: gave police, arrested his wife he was conducted, practicable, so to the extent as Thompson, a her written consent to Linda privi- making facilitate the of claims Depart- of the Aransas Pass Police member jury.” lege knowledge without ment, appellant’s resi- to search 513(c) pro- expressly (My emphasis.) Rule dence. against request, party “Upon any vides: record is pause I out that the might in- jury an adverse whom the draw judge con- the time the trial clear privilege is entitled ference from claim of pretrial hearing ducted may be instruction that no inference to an never suppress, appellant’s wife motion to I find that none drawn therefrom.” thereafter, time, or indicated before that to by or adhered rules were honored above wanted to for the State that she judge trial prosecution or the either against this cause. privilege spousal It is axiomatic that the prior to trial the The record reflects that still legal privileges oldest is one of the hearing on judge conducted a trial recognized our courts. the evidence that motion lant’s by the Court applied Supreme had seized from his residence police early as 1839 Stein States as United to his wife’s consent search. pursuant (13 Pet.) 209, Bowman, 10 L.Ed. 38 U.S. Thompson, the other wit- Officer Besides privi- (1839), recognized the and Texas pretrial hearing who testified at nesses member of it lege even before became Ranger, Texas appellant’s wife were Mum- Republic Texas v. the Union. See important testimony find is not whose (1840). Dallam 374 ford, virtually all of the Almost our discussion. cross-examination has been State’s history of what Por a brief wife, objection, occurred over privi which “husband-wife” characterized then before that was to the issue see Tram irrelevant lege, “spousal” privilege, is, resolve, whether 40,100 judge to States, trial S.Ct. 445 U.S. mel v. United her and consent to search appellant’s wife’s (1980). also Haw 63 L.Ed.2d See voluntarily given residence was States, 79 S.Ct. 358 U.S. kins v. United Thompson. (1958); v. Unit Lutwak 3 L.Ed.2d trial, notwithstanding prose- scope objection, At that the over exceeded the of the obviously by questioning or should wife’s direct examination cution knew have appellant’s many wife matters which appellant’s going that wife was to about known I find were irrelevant to the issue of wheth- spousal privilege, invoke her the appellant’s voluntarily gave er wife her presence jury, appellant’s the of the called Thompson police that the consent to so the wife to be a witness for State. Over appellant’s could search her and trailer objection, presence jury, and in the of the necessity obtaining a home without the judge appellant’s the trial forced wife to search warrant. . spousal privilege. invoke her The trial judge give jury also declined to the an appellant It undisputed that was mar- 513(c). pursuant instruction to Rule There- Johnson; appellant, ried to Elaine that after, evidence, the State had admitted into Elaine, and her natural son Michael lived objection, partial transcription over the trailer later home that was searched appellant’s cross-examination testi- wife’s police pursuant appellant’s to wife’s mony, incriminating which contained evi- search; prior appellant’s consent to against appellant. dence Michael, only appellant arrest and the family dog “Magnum,” were inside of the appellant’s response its first and home, appellant having trailer and his wife error, points I second understand another, temporarily separated from one same, argues calling ap- that its staying at a wife friend’s resi- pellant’s testify in jury’s pres- wife to dence; arrested, appellant that after was ence, judge’s forcing the trial her to invoke gave police his wife her written consent spousal privilege jury’s presence, appears to search their trailer home. It judge admitting and the trial into evidence appellant’s from the record that when objection damaging over and incrimina- gave Thompson her written consent ting part appellant’s wife’s cross-exami- appellant’s search her and residence she nation does not constitute reversible error appellant were not on the best of 804(a), 804(b)(1), 513(b), because of Rules However, by pretrial terms. the time the 513(c), 610(b), and Rule Tex.R.Crim. appellant’s was held on motion to Evid., all of which were in effect when suppress, appellant she and had “made appellant’s trial occurred. Under the facts up.” cause, agree this am unable to with the pretrial The record reflects that at the State. hearing, testimony to counter appear All commentators to be Thompson, wife had volun- agreement except absolutely when search, tarily given her consent to necessary unwilling spouse an should not wife, Elaine, solely testify lant called his called required State and to in- on the issue of the voluntariness of her voke his presence consent to search. Elaine’s consent “Rather, jury. prosecutor should search was obtained after ascertain, jury’s first presence, outside the police, and after he had arrested spouse being object will not [to give police consent to refused to his called to behalf of the State].” search. All of wife’s Evidence at 505-14. See also Weinstein’s on direct examination at that was adduced Mueller, Louiselle & Federal Evidence. pretrial hearing to facts that went presented by

The sole issue that was judge might have demonstrated to trial pretrial hearing at the on his that her consent to search was not volun- motion act, was whether his wife’s through mental tary but was obtained or, consent to search his and her residence appellant’s attorneys coercion as one of gave Thompson, it, that she mem- “psychological pressure.” Ap- to Linda described cross-examined, Depart- ber of the Aransas Pass Police ob- pellant’s wife was over ment, alia, voluntary. Appellant’s purchasing ap- jection, wife’s inter about her totally jeans approxi- pellant pair on direct examination was a new of blue State, however, the murders mately limited three weeks before to that issue. were committed. She was also cross-exam- asked wife on cross-examination separation appellant; ined about her from totally pretrial hearing at the were irrele- “fight” her which oc- about appellant’s vant to the issue whether wife’s place of curred outside the of business gave police consent to search that she the worked; she certain where about given. Thus, voluntarily appellant’s was pieces police of evidence that the had seized objections questions to such should have appellant’s pursu- from her and residence sustained, overruled, by been rather than gave to her consent that she ant to search judge. compare the trial See and Nelson v. Thompson. testimony concerning ap- (Tex.Cr.App.1989). 765 S.W.2d 401 pellant’s purchasing appellant pair wife a however, find, following I that the was jeans of new blue was relevant properly brought by prosecutor the out pair the size State’s case because a of same response during his In cross-examination: jeans pair jeans a of and brand matched prosecuting attorney’s ques- the to one of dumpster that was later found in a that appellant’s pretrial tions to at the wife residence, near ex- appellant’s was located you hearing, saying "Are that Linda jeans dump- cept pair found you Thompson sign forced to that consent ster had once been soaked in blood. An search?,” appellant’s responded: to wife attempt had made unsuccessful been signed they told me unless I it were “She jeans. someone to wash the from the blood going get Appel- to a search warrant.” virtually questions I find that all of the also “I told them I lant’s wife testified that appellant’s wife on that State asked to be the trailer wanted there when pretrial hearing cross-examination at the I they searched so knew took out of what totally issue whether were irrelevant to the the trailer.” appellant's wife's to search that consent police voluntarily given.. gave she It should be to almost anyone obvious Thus, appellant’s objections ques- to such purpose judge conducting a trial sustained, rather tions should have been hearing pretrial motion a on a defendant’s overruled, by judge. the trial than evidence, deciding the suppress to is- cross-examined, Appellant’s wife was judge pretrial, is to the trial sue enable alia, objection, by prosecutor, inter over delays during the occurring avoid trial. pair purchasing appellant a new about E.g., Bosley v. jeans approximately of blue three weeks (Tex.Cr.App.1967). the murders committed. She before were course, pretrial hearing partic- on a Of separa- was also cross-examined about only encompass ular motion should rele- appellant; “fight” with tion from about her parties matters that and the trial vant appellant which occurred outside trial. judge prior desire to resolve worked; place of business where she instance, pretrial at the this sole issue pieces certain evidence that the about appellant’s hearing on motion appellant’s police had seized from her and wife appellant’s was whether had evidence pursuant her consent to search residence voluntarily police consented to the search- gave Thompson. that she Any ing appellant’s her and residence. tes- testimony concerning appellant’s have been timony on that issue would rele- purchasing pair of blue vant, brought on direct or whether out case be- jeans was relevant to the State’s cross-examination, or either the State pair and brand cause a same size pair jeans that was jeans matched under agree I with the State located dumpster later found in a that was Evidence, govern Rules of Criminal residence, except pair appellant’s near there is no privilege, husband-wife dumpster had once jeans found spouse one longer the restriction that when An unsuccessful been soaked blood. the other voluntarily testifies on behalf of attempt had been made someone pretrial spouse, either from I find that jeans. wash the blood trial, his or her on cross-exam- questions at virtually all of the that the ¡nation given is restricted to that on direct wife on cross-examination course, pretrial hearing. judge the trial examination. ad- Had Of objections, as she duced on must be rele- sustained cross-examination have, proceeding to an then this have made moot vant issue should would fact, of error. being point conducted. In Rules second Evidence, expressly provides: of Criminal my research, pause out relevant “Evidence which is not is inadmis- majority’s, apparently nor does the does sible.” I see no to make a distinc- reason anything might reveal reflect or not tion evidence between irrelevant offered at adopted Rule indicate that when this Court pretrial hearing on a motion to 504(2)(a), Evidence, Rules of it Criminal and irrelevant evidence offered at the ac- everything intended to that it had abolish Thus, cused’s trial. irrelevant evidence privilege. held ever about husband-wife not, objection, should over ever be admitted 38.11, (1965 Art. V.A.C.C.P. Code of evidence, during pretrial into either hear- amended, Procedure), which is Criminal as ing or the trial itself. 504(2)(a)’s predecessor, previously Today, belatedly I would resolve the di- of the controlled the boundaries husband- faced in lemma that the trial privilege. expressly pro- That wife statute court, spouse one hold that when vol- may, “The wife in all vided: husband and untarily hearing testifies at pretrial actions, criminal be witnesses for each oth- behalf, spouse’s testifying the other er, provided, except they but as hereinafter spouse, by testifying, so does not for waive against in testify shall no case each other purposes trial privilege. his or her marital prosecution.” in a criminal Prior equated 38.11, long spousal supra, This Court has of Art. former Ar- enactment 714, privilege Procedure, privilege with the self-incrimi- ticle Code of Criminal latter, regards nation. In provided part this Court in that “neither husband nor shall, “by testifying case, testify has held that at prelimi- any in as to commu- wife nary other, hearing, inquest, grand by at an before a nications made one to while jury previous may, or at a trial one married and wife in does not ... The husband right actions, waive his privilege to claim his criminal each all be witnesses for against other; at a they self-incrimination later trial but shall in no case Thus, ... appear against except it would that a each in a waiver other criminal beyond particular proceed- does extend prosecution for an offense committed ing State, by voluntarily testifying against Rogers at one’s one the other.” v. own (Tex.Cr.App.1963). trial the witness does not lose S.W.2d 772 This his 368 privilege proceeding.” past at a it clear later Davis v. cases make that the Court’s State, privilege, 630 (Tex.Cr.App. spousal S.W.2d “husband-wife” as set 1973). amended, 38.11, People Stufflebeam, supra, See also v. in Art. as 19 out Ill.App.3d dimen- 311 N.E.2d 602-603 treated like it was of constitutional (1974). Therefore, appear I hold that make it that the would sion. cases not, given by voluntarily testifying spousal privilege lant’s wife did was to the same pretrial dignity at the appellant’s mo- that the constitutional given. suppress, spousal tion to had privi- waive self-incrimination been lege testify against appellant not to at his 38.11, supra, originally Under Art. however, State, Compare, trial. Jones v. worded, except exceptions listed for the (Tex.Cr.App.1973); 501 S.W.2d 308 Rogers statute, exceptions no other ex- within State, (Tex.Cr.App.1963); 368 S.W.2d 772 isted, including being as a witness called State, Thrash v. Tex.Crim. spouse against the defendant (App.1960). spouse the defendant had committed where his, her, judge against or stress that the should an assaultive offense trial have 38.11, supra, as amend- sustained children. Art. counsel’s “irrelevant” their ed, however, following ex- objections provided for many that were of the leveled may questions ceptions: volun- prosecuting attorney wife or husband asked “[A] presence testify against any in for the in the tarily each other case versible error involving any grade jury, as- of the to call defendant’s for an offense State, “thereby against testify as a witness or violence committed one sault object presence in the forcing him to against any or child of either the other jury, action done such a when such any years age, under 16 or case where impres convey jury manner as to charged bigamy, any is with or either wife, testify, if sion that allowed charged with case where either is interfer- testimony previously would rebut defensive custody, any case ence with child (Citations omitted.)” given in the case. charged nonsupport where either pages 210-211. supra, See Johnigan, spouse or minor child.” his or Wall, supra. also and reversible Incurable 38.11, supra, disqualifi- Art. “The Under the defen error also occurred even when spouse cation of a as an adverse witness jury’s object dant forced was not Johnigan could be waived.” jury any impres presence, if the received 209, (Tex.Cr.App.1972). 210 482 S.W.2d testimony or sion that the wife’s husband’s occur, forcing prejudicial such action to “In to the defendant. would have been adverse guilty of an the Court and the State were supra, page at 211. Even where Johnigan, and committed reversible error. injustice bifurcated, spouse was the trial was one State, (Citations omitted.)” v. 417 Wall disqualified the State testifying from at 59, (Tex.Cr.App.1967). 63 also S.W.2d See spouse’s punishment stage of the other 595, (Tex. State, v. 719 S.W.2d 597 Willard 640, State, Carabajal trial. v. 477 S.W.2d State, Cr.App.1986),citing v. 74 Tex. Eads (Tex.Cr.App.1972). 641 628, (App.1914). 170 145 Crim. S.W. husband, the wife testified for Where ruled, express- if This Court has also not versa, permitted or the State was to vice protection that the ly, implicitly, at least spouse testifying “on cross-examine 38.11, by supra, fun- embraced Art. was so concerning or she testi- which he matters by not be vitiated damental that it could direct, also matters fied on and as to that consent, by lost failure to could not be pertinent to his or germane were trial, and it also object to its violation at testimony but were not direct which hearsay objected to not applied statements brought on direct examination.” out State, v. 501 by to the defendant. Jones (Tex. 282, 287 517 S.W.2d Mitchell v. 3, 4, 308, 1, 2, pp. fn. 309-311 S.W.2d Thus, it impermissible Cr.App.1975). was majority (Tex.Cr.App.1973). opinion’s The bring incriminating to for the out in upon much of the dictum found reliance unless same on cross-examination evidence 645, (Tex. State, 715 649 Aguilar v. either direct brought was out examina- holding its that Cr.App.1986), support to ger- spouse or was tion the defendant calling disqualified error in the State’s to examina- pertinent mane the direct testify subject to harmless witness to is State, 109 Tex. testimony. Wiggins v. tion terribly misplaced. analysis, is error 195, (App.1928). 811 Also 3 S.W.2d Crim. State, 104 Tex.Crim. see v. Niles However, disqualification as spouse’s Ann.P.C., (App.1926); Branch’s S.W. 568 spouse was to the other an adverse witness p. at § as exceptions, such not without gestae excep- res pursuant spousal to the adduced Although acknowledge evidence; guaran- rule of wife hearsay constitutionally to the privilege tion is not co-conspirator; principle as a co-defendant as a wife I also find that privilege, teed husband, tried Supreme if the husband was announced Court law wife; and, States, from the where U.S. separately in United Simmons (1968), part of a conversation introduces L.Ed.2d defendant 88 S.Ct. another, cause, part to applied his the State this wife and should be between privilege. One the remainder of this “husband-wife” entitled to introduce State’s was Court had Supreme that the subject. same of the issues conversation on the Simmons, supra, concerned a (Tex.Cr. in to resolve 501 S.W.2d Jones testifying at dilemma either defendant’s and re- It also incurable App.1973). suppress, prevented on a have him from pretrial motion to but this would “standing,” producing independent in order establish his evidence that any all, right testifying invoking thus his ob- involuntarily his wife’s consent was eliminating privilege, and self-incrimination tained. could possibility his own 504(2)(a) provides spouse Rule that “a trial, to convict him but be used at his on behalf of an accused who testifies give up that he causing him his claim provided subject to examination as cross “standing” to had contest a search. 610(b) 610(b).” Rule expressly pro- Supreme Court stated and held the follow- however, vides, may that “a witness “Thus, case, ing: in this Garrett [one any matter relevant cross-examined obliged ei- defendants Simmons] case, any including credibility.” issue in the believed, give up ther what he Thus, (My emphasis.) judge the trial clear- counsel, advice of to be a Fourth valid ly prosecutor permitting erred in or, effect, legal Amendment claim appellant’s cross-examine about irrele- waive his Fifth Amendment majority opinion agrees, vant matters. against circum- self-incrimination. In these way but then in sort of a convoluted holds stances, I find it consti- intolerable that one was harmless to such error right should surren- tutional have to be Given the facts circumstances of the in order to assert We dered another. called being wife’s the State in the hold that when a testi- therefore defendant jury’s presence, and forced not to support of a fies motion to on pursuant jury’s presence, the and grounds, testimony Fourth Amendment his Simmons, principle announced in of law may against not thereafter be him admitted and, furthermore, supra, I because would guilt at on the issue he trial unless appellant’s hold that wife her retained objection.” makes no United Simmons v. spousal privilege testify at trial not to for States, supra, at U.S. at 88 S.Ct. against appellant, the I State and would 976. not State’s contention that answer the The record in this cause that in is clear appellant’s privilege when wife invoked her court trial was confronted by testify when the State to called with a similar dilemma as defen- was the trial, appellant’s she then became unavail- States, dant Garrett Simmons v. United See, appellant’s at testify able to trial. supra. pre- The record reflects that at however, 804(b)(1), Rules of Criminal hearing appellant’s sup- trial on to motion Evidence. press pursuant evidence that was obtained Furthermore, by my holding appel- search, appellant to his consent to wife’s spousal privilege her lant’s wife retained was presented options: with two he could trial, testify against appellant at his not to testify prove call his wife to in order to finding timely and further that she that her consent to the involun- search was properly same when called invoked to testi- tarily by if Thompson, obtained Officer but appellant’s trial, fy by the at the rule State his subject he did so wife became to cross- at that “If a a former trial of the witness prosecutor. Although examination testify same case is not available to at not judge foreseeable the trial would cause, retrial his at the permit prosecutor ap- to cross-examine admitted,” may be former trial see 24 Tex. matters, pellant’s wife on irrelevant this Evidence, 696, Jur.2d, page at not is § outstanding possibility, was an actu- which applicable cause. also to this See McCor- ally Furthermore, an occurred. it also Evidence, Edi- Ray, mick & Texas Second outstanding possibility the trial that at trial tion, 942 & § prose-

judge would admit into evidence the privilege, claims his “When a witness irrelevant cutor’s cross-examination inevitable, natural, an almost infer- hearing. indeed pretrial had been adduced at the what would his hand, ence arises as to have been On have the other could testify.” not refused to above to call answer if he had choosing avoided the not Maloney, testify hearing, his to 262 F.2d 535 pretrial wife at the United States cautionary in- Cir.1959). give such a (2nd regard, In it error” not to this context. appellant’s testify wife to in the self-incrimination called struction State who trial, 513(a) of the Federal appellant’s apparent with the Also see Federal Rule at Evidence, intended to invoke 19 A.L.R.4th knowledge that wife Rules of testify against annotation, ef- spousal privilege “Propriety prejudicial her not to witness, point, an in- to calling At this inevitable prosecution’s fect of voluntarily privilege, ference arose that had the wife extract claim of self-incrimination testified, done so on charged against she would have behalf one offense involved State. accused.” If the calls a husband or wife prosecutor Therefore, I hold that the trial would State, knowing that the testify following particulars: judge erred privilege his not to testi- spouse will invoke appellant’s permitting the to call wife prosecutor charged fy for the pres- testify against jury’s him in probable effect that the with notice of the ence; to cross-exam- permitting the State upon might jury’s have witness’ refusal mat- ine wife about irrelevant appellant’s instance, judge mind. the trial In this both hearing appellant’s pretrial ters prior prosecution had notice and, appel- suppress; because motion spousal would invoke spousal had at trial still lant’s wife for the State and privilege testify not to against appellant testify privilege not against appellant. husband, admitting into evi- erred objection transcription no over regard, point I out that there is dence this adduced wife’s appellant “opened” claim the State that pretrial at the calling his wife to cross-examination the door to the State suppress. him, wife on motion testify against that his “waived” her Furthermore, unable to conclude am Furthermore, against appellant. errors, beyond doubt a reasonable gave at the that she lant’s wife’s no individually collectively, made either extraju- hearing did constitute pretrial See conviction. contribution against appellant to oth- dicial statements 81(b), Appellate Rules Procedure. Rule did, they I would still sub- ers. if Even opinion’s con- majority regard, In this statements, hearsay the rule that scribe to harmless, error was trary holding, that the to, privilege. objected if are blocked I dissent- registered what supports States, 344 F.2d Ivey See United v. v. ing that I filed Harris opinion Williams, (5th Cir.1965); United States 568, 597, (Tex.Cr.App.1989). Cir.1971); (5th Wigmore 447 F.2d 894 this majority If the intent of it is 1961); (rev. McNaughton Evidence § Rule Court, provisions of applying Wright, Federal Practice and Procedure 81(b), might fancy, under it suit their (1969). 405 at 87 § However, theory, it. would “gorilla” so be 513(b) provides that “the expressly majority responsible it more not be done making of claims [shall 81(b) no rewrite Rule so this Court practicable] without extent defen- harmful error can ever be jury.” This rule was knowledge of the dant? in this by the State obviously violated Therefore, respectfully dissent. 513(c) provides expressly cause. Rule jury might against “any party whom from a claim of inference

draw an adverse instruction that privilege is entitled to an therefrom.” may be drawn no inference judge declined to Obviously, the trial when terms she violated the jury, instruct the so Maloney, of this rule. United States “plain that it supra, that court held

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 13, 1991

Citation: 803 S.W.2d 272

Docket Number: 70177

Court Abbreviation: Tex. Crim. App.