Gerald Wayne TIGNER, Appellant, v. The STATE of Texas, Appellee.
No. 71839.
Court of Criminal Appeals of Texas, En Banc.
May 22, 1996.
Rehearing Denied Sept. 11, 1996.
928 S.W.2d 540
MANSFIELD, Judge.
Because I believe that error in the admission of evidence of the prior misconduct was harmless, I would affirm the judgment of the Court of Appeals.
With these comments, I join the majority opinion as to appellant‘s ground for review two (vindictiveness), I concur as to ground three (“ex post facto“), and I dissent as to ground one (admission of evidence).
McCORMICK, P.J., joins.
Walter M. Reaves, Jr., West, for appellant.
OPINION
MANSFIELD, Judge.
A McLennan County jury convicted appellant, Gerald Wayne Tigner, of capital murder.1 At the punishment phase of the trial, the jury found appellant to be a future danger under Article 37.071 § 2(b)2 and, further, declined to find mitigating circumstances sufficient to militate against application of the death penalty under Article 37.071 § 2(e). The trial court sentenced appellant to death. We now reverse.
In point number one, appellant contends that the trial court erroneously admitted his oral confession, in violation of
On September 29, 1993, appellant was indicted for capital murder. He was arrested the next day, September 30. A few days after his arrest, in a tape-recorded statement to police, appellant conceded shooting the decedents but claimed self-defense. Defense counsel, aware of appellant‘s recorded statement, filed a written discovery request, dated October 19, 1993, in which he requested access to the recording so that he could inspect it, copy it, subject it to scientific analysis, etc. Appellant next filed a motion to suppress all oral statements on October 27, 1993. At the time he filed the suppression motion, appellant had not yet received a copy of the recorded statement.
On December 15, 1994, appellant stated in a pre-trial hearing that he had been given complete access to the prosecution file “ten days to two weeks ago.” Apparently, appellant obtained a transcript of the recorded oral statement from this file. Appellant had still not been provided a copy of the electronic recording.
On January 24, 1994, the State provided appellant with a copy of the electronic recording. The hearing on appellant‘s motion to suppress the recorded statement was held four days later on January 28, 1994. At the suppression hearing, appellant objected to the statement‘s admissibility, contending that he had not been provided a copy of the tape within the statutory confines of
At trial, appellant‘s defensive theory was alibi and mistaken identity. To counter appellant‘s contentions, the State sought to introduce appellant‘s tape-recorded statement in which he acknowledged the shooting but claimed self-defense. Defense counsel then reasserted his
The question presented in point of error number one is whether the term “proceeding,” as used in
I.
The focus of statutory interpretation is upon the literal text of the statute in question. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).
We do this because the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature.... [T]he Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted. Id. at 785. [emphasis in original]
However, if a statute has an ambiguity, or if a literal interpretation would lead to an “absurd” result, we are constitutionally authorized to look to extratextual factors to determine its application. Id.
At the outset this Court must resolve a prefatory interpretive matter. Did the State comply with the
When interpreting the plain meaning of “copy,” one might ask, how does a person provide a copy of an electronic-recording? The compelling response to this question is that one provides a “copy” of an electronic recording by furnishing something which is itself an electronic recording. This is especially true in the context of the Legislature‘s direction, in
Indeed, even if this Court assumed, arguendo, that the term “copy” was ambiguous, the legislative history deems a transcript inadequate. A fundamental purpose of this Article was to provide defense counsel with an actual electronic recording so that he might subject it to expert analysis to determine its accuracy, etc. See Debate on Tex. S.B. 55 on the Floor of the Senate, 71st Leg., R.S. (Apr. 13, 1989) (tapes available from Senate Staff Office). The following exchange took place during the legislative debate for
SENATOR (unknown): Your bill also provides that the defense attorney has accessibility to that tape in order for him to check it out on his own devices as to whether or not that oral confession warning has been pre-recorded, and then the beatings take place, and then the young man confesses, or the young woman, or the old man, right?
SENATOR BROWN: That‘s correct, senator.
SENATOR (unknown): And you can tell that through splicing and you can tell through “high-tech,” and of course it will increase the defense lawyer‘s fees.
One could not perform “high-tech” analysis on a transcript. Hence, the Legislature must have deemed a transcript deficient. The Legislative history indicates no contrary purpose for this statute.
Finally, we note, too, that two leading scholars, Professors Dix and Dawson, agree that “copy” does not encompass “transcript.” They write in their treatise, Criminal Practice and Procedure, § 13.104:
What is provided to defense counsel must be recordings constituting copies—presumably, accurate ones—of the recordings covered. Since the purpose of the requirement is to enable defense counsel to investigate potential challenges to the admissibility and credibility of the recorded statement to be offered by the State, a transcription of the recording is not sufficient. [citing Castaneda v. State, 852 S.W.2d 291, 293-94 (Tex.App.—San Antonio 1993)] Such a transcription, even if accurate, might not fully reflect matters bearing on admissibility and credibility.
Hence, we hold that a “transcript” is not a “copy” for the purpose of
We now turn to “proceeding.” Does the term “proceeding,” as used in
(a)(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article. [emphasis added]
The term “proceeding” is a very broad nomenclature. Black‘s Law Dictionary defines “proceeding” in the following way:
In a general sense, the form and manner of conducting juridical business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of judgment.... All the steps or measures adopted in the prosecution or defense of an action. Black‘s Law Dictionary 1204 (6th ed. 1990). [emphasis added]
Indeed, the original House version of Article 38.22 § 3(a)(5) would have supported the State‘s position:
§ 3(a)(5) on the request of the defendant, the attorney representing the state provides the defendant with a true, complete, and accurate copy of all recordings of the defendant made under this article or, in the absence of a request by the defendant, the attorney representing the state, not later than the 10th day before the commencement of the trial on the merits in the case, provides the defendant with a true, complete, and accurate copy of all recordings made under this article. Tex. H.B. 11, 71st Leg., R.S. (1989). [emphasis added]
If the Legislature had retained this language in its final version of
The State contends, nevertheless, that its interpretation of “proceeding” must be sustained if the term is read in conjunction with the phrase “criminal proceeding” as it appears in
In addressing this argument, we again observe that the Legislature‘s word selection was very broad, conceivably extending to all phases of a criminal prosecution. Black‘s Law Dictionary defines “criminal proceeding” as: “Strictly, a ‘criminal proceeding’ means some step taken before a court against some person or persons charged with some violation of the criminal law.” Black‘s Law Dictionary 374 (6th ed. 1990). The
Indeed, even assuming, arguendo, the State‘s contention that the term “criminal proceeding” is confined to those procedural phases in which the oral statement is admissible against a defendant, such analysis leaves unanswered the issue of what the Legislature meant by “proceeding.” This is because such a definition fails to resolve the very issue presented at bar: Whether voir dire is a part of the “proceeding” at which the oral statement is admissible against the defendant. The State‘s interpretation does not clarify this latent ambiguity. Hence, we are back to our original query: Does the term “proceeding,” as used in
As delineated, supra, the Legislature has demonstrated its willingness to utilize the term “trial on the merits” as a distinct term of art throughout the Code of Criminal Procedure. The fact that the Legislature did not do so here is persuasive textual evidence that it did not intend to transform the term “proceeding” into “trial on the merits.”
Thus, the meaning of “proceeding” as used in
The use of extratextual factors indicates that the term includes voir dire. The proposed amendments to Article 38.22 § 3 would have initially eliminated the requirement that an accused be advised he was being electronically recorded during a custodial interrogation. See Hearings on Tex.S.B. 55 Before the Senate Comm. on Crim.Justice, 71st Leg., R.S. (Mar. 7, 1989) (tapes available from Senate Staff Services Office). When the possibility of surreptitious custodial interrogation was proposed on the Senate floor, it engendered vigorous debate. See Debate on Tex.S.B. 55 on the Floor of the Senate, 71st Leg., R.S. (Apr. 13, 1989) (tapes available from Senate Staff Office). In response to this debate, certain protections for an accused were proposed on the floor of the Senate. One of those protections was that defense counsel be provided with a copy of the electronic recording twenty days before the “proceeding.” Id. The purpose of the twenty day requirement was to provide defense counsel with adequate time to prepare possible challenges to the admissibility or credibility of recorded statements offered by the State. As one senator remarked on the floor, in an exchange alluded to, supra, the twenty-day requirement was intended to provide defense counsel adequate time to examine the tape to determine if any splicing or alteration had taken place, or if any other improprieties had occurred during the taping.
Senator Washington, the individual who proposed the twenty day rule on the floor of the Senate, also commented on its purpose. When asked what the twenty day safeguard meant, he responded:
SENATOR WASHINGTON: So if you‘re going to make the recording, give the guy‘s lawyer a copy of it, and you can probably settle a lot of these cases if they know that.
This reference demonstrates that the author of
Although the State concedes in its brief that the purpose of
The Legislature has given an unusual, yet explicit command to “strictly construe”
Professors Dix and Dawson address also the meaning of “proceeding,” as used in
The required copies must be provided to defense counsel not later than the 20th day before the date of “the proceeding.” Since the purpose of the requirement is to enable defense counsel to prepare possible challenges to the admissibility or credibility of recorded statements to be offered by the State, “the proceeding” must mean the proceeding at which those issues will arise. If a pretrial hearing is to be held on the admissibility of an electronically recorded statement, then, compliance must be completed by the 20th day before that hearing. If no pretrial hearing is to be held, the copies must be provided by the 20th day before trial.
It is evident that Dix and Dawson believe the term “proceeding” includes a pretrial hearing—if there is one. Given this understanding and its application to the facts at bar, the prosecution failed to comport with Article 38.22 because it provided a copy of the tape-recording only four days prior to the suppression hearing. Indeed, under the Dix and Dawson rationale, since the issue of a statement‘s admissibility will arise during voir dire via questioning about a veniremember‘s ability to abide by Article 38.22 § 6, a “proceeding” must also include voir dire.
We therefore conclude that the term “proceeding,” as used in
The State finally contends that, even if there was a violation of
The gravamen of the State‘s argument as it pertains to harmless error follows:
As previously pointed out, Appellant was obviously aware of the statement and filed a Motion to Suppress them in October 1993. The defense was given a copy of the tape on January 24, 1994. The tape was played in open court on January 28, 1994.... Appellant was aware of the tape and statements made to law enforcement and was not hindered in presenting his defense. The defense never expressed surprise or requested a continuance either at the suppression hearing or when the tape was introduced in the State‘s rebuttal case on February 24, 1994. State‘s brief at 6.
The State‘s argument seems to be that there was no harm because appellant was subjectively aware of the contents of the custodial statement. Appellant was not ambushed, the State contends, because appellant did not act surprised or request a continuance. Yet such an argument fundamentally misconceives the notion of harmless error under
Yet, appellant made an articulate objection, specifically citing the Article which provided the legal rationale for exclusion of the confession. There is no contention that the trial court failed, in any way, to comprehend appellant‘s contention that he did not receive a copy of the confession within the twenty day requirement. The dissent, however, would require appellant to do more. Under the dissent‘s view, a defendant would have to provide specific grounds, extraneous from the rule itself, in support of his objection. Our research has failed to uncover legal support for the proposition that a defendant is required to provide “special reasoning” in support of his objection, or face waiver. The dissent is placing a burden upon the defendant to ameliorate the “harm” of the State‘s own error, or face waiver. It is, however, enough that appellant object to the State‘s non-compliance in a fashion which gives the trial court an opportunity to give appellant relief.
The dissent identifies a purpose of
The dissent makes a second related waiver argument, contending that appellant did not obtain an adverse ruling as to his
Under
Hence, to advance its notion of harm analysis, the State contends that a failure to abide by
We are permitted, however, to measure the harm flowing from the erroneous admission of evidence to determine if reversal is mandated. This form of harm analysis—as authorized by
III.
Thus, this Court must reverse the judgment if the error was not harmless. Under the plain text of
As noted previously, the defensive theory at trial was mistaken identity and alibi. Appellant‘s grandmother, Josephine Green, testified that appellant was with her, at her residence, during the time of the killings. In addition, Ms. Green‘s neighbor, Gloria Cabiness, testified that at the time of the killings she too was at Ms. Green‘s residence, where she was introduced to appellant. Finally, Carl Butler testified that he saw another man, not appellant, do the shooting. Each of appellant‘s witnesses was subject to varying degrees of impeachment.
The heart of the State‘s case involved three eyewitnesses who testified that appellant did the shooting. One of the eyewitnesses, Carl Washington, had never seen appellant before the shooting. The other, Roy Darden, testified that he recognized appellant “from around town.” Finally, Timothy Scott testified that he was with appellant just before the shooting, watched appellant kill the decedents, and then left with appellant. Each of the State‘s witnesses was also the subject of varying degrees of impeachment.
There appears to be a reasonable likelihood that, but for the error, the jury would not have convicted appellant. The erroneous admission of appellant‘s statement was damaging because the State‘s case was not otherwise overwhelming. In his oral statement, appellant confessed to killing the two people alleged in the indictment. This Court would be hard pressed to deny that such a confession contributed to the jury‘s finding of guilt given the nature of the defense. Indeed, the State acknowledged the damaging character of appellant‘s statement in its jury argument:
PROSECUTOR: Now, we have a very
The State utilized appellant‘s statement in an effort to do the most damage to appellant‘s defense, yet it now argues that the attempt was unsuccessful. Given these facts, we cannot say, beyond a reasonable doubt, that the admission of appellant‘s statement did not contribute to the finding of guilt.
Having found that the trial court erroneously admitted appellant‘s statement in violation of
WHITE, J., concurs in the result.
McCORMICK, Presiding Judge, dissenting.
I respectfully dissent to the majority‘s disposition of appellant‘s first point of error.
The obvious purpose of
The majority concludes the meaning of “proceeding” in
“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless[:] not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.” (Emphasis Supplied).
The State argues, and I agree, that the term “proceeding” refers to “criminal proceeding.” Read this way, it is clear the Legislature intended “criminal proceeding” to refer only to those phases of a criminal prosecution at which an electronically recorded oral statement “shall be admissible against the accused.” Since an electronically recorded oral statement is not admissible against an accused during voir dire, then voir dire is not a “criminal proceeding” for purposes of
In addition, under
I also would hold appellant waived any appellate complaints about the admission of the statement on the basis of the State‘s noncompliance with
Since the purpose of
More importantly, appellant also did not object at the January 28, 1994, suppression hearing to the trial court‘s deferring a ruling until trial on appellant‘s suppression-hearing objection to the admissibility of the statement. However, appellant now complains on appeal that his statement was inadmissible at trial because the trial court did not require the State to provide appellant with a copy of the statement in a timely manner. But, had appellant timely pursued his suppression-hearing objection to a ruling, then the trial court would have had an opportunity to make a ruling requiring the State to remove the basis of appellant‘s objection to the statement by the time the State offered it into evidence at trial. Cf. Norris v. State, 902 S.W.2d 428, 446 (Tex.Cr.App.1995). Therefore, on this record, I would hold appellant‘s failure to object to the trial court‘s refusal at the suppression hearing to rule on his objection to the admissibility of the statement waived any appellate complaints about the admissibility of the statement on the basis of the State‘s noncompliance with
I respectfully dissent.
MEYERS and KELLER, JJ., join this dissent.
No. 831-94.
Court of Criminal Appeals of Texas.
June 12, 1996.
Notes
(a) A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and:
* * * * * *
(7) the person murders more than one person:
(A) during the same criminal transaction;
(a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
* * * * * *
(e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:
(1) only voices that are material are identified; and
(2) the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent.
Art. 36.01 Order of Proceedings in Trial
(a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in the following order: ...
Article 36.01(a) does not address whether a “proceeding” includes voir dire. It speaks only to how a case will “proceed” after a jury is impaneled. Indeed if the dissent was accurate about its interpretation of Article 36.01(a), then the Code of Criminal Procedure would become confusing. For instance, Article 1.051(a) reads in relevant part:
(a) A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding. [emphasis ours]
Under the dissent‘s interpretation of Article 36.01(a), a defendant would be entitled to counsel only after a jury is impaneled, a result which would likely violate the constitutional right to counsel.