Washington v. StateWashington v. State
- Reporters:
- ,
- Before:
- J. Curtiss Brown, Junell, Price
Patricia Saum, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and JUNELL and PRICE, JJ.
J. CURTISS BROWN, Chief Justice.
This is an appeal from a conviction of murder. The primary question presented is whether a new trial should have been granted on the basis of the availability of an absent witness who was thought to be
At approximately 1:20 a.m. on May 3, 1981, several prostitutes were “working the streets” at a location on Dowling Street in Houston. Casandra Deary (Deary or deceased) and Sandra Gayle Washington (Washington or appellant) began arguing over some money. An altercation ensued that left Deary with a fatal stab wound to the neck.
Washington was indicted for murder under
Jocelyn Brown, a prostitute who witnessed the fight, testified that Washington and Deary were arguing over money when Washington pulled a knife from her back pocket. Deary then picked up a wooden stool upon which she was sitting and began to swing it at Washington. In return Washington inflicted several knife wounds, the last of which was to the neck. Ann Lewis, another prostitute who witnessed the fight, testified that Washington drew her knife and cut Deary on the arm during the course of the argument. Deary then began swinging the stool. On cross-examination Lewis was questioned about a statement she made to the police in which she indicated Deary began swinging the stool before Washington began to stab at her. She further admitted that Deary was her best friend and that she was not paying much attention to the fight because she was trying to stop cars.
Washington took the stand and testified she began arguing with Deary that night over the proceeds from the sale of a rifle they had stolen together. Deary was “loaded,” and during the argument reached behind her as if she was going for a weapon. Washington pushed her off the stool and heard something fall. Washington then drew her knife. Deary struck Washington with the stool and her response was to strike back with her knife. She characterized her actions as self-defensive.
The medical examiner testified that the cause of death was a stab wound to the neck. He characterized a stab wound to the arm as being, in his opinion, a defensive wound. He also testified that there was no evidence of drugs or alcohol in Deary‘s body.
The testimony indicated there was another witness to the incident, Gayle Bradley (Bradley). Appellant‘s original court-appointed counsel had filed a motion requesting an investigator. One was appointed, and on the basis of his investigation appellant‘s trial counsel was informed that Bradley had died as a result of a beating by friends of the deceased. This information was passed on to appellant‘s retained trial counsel when he took over the case. After appellant was convicted, her appellate counsel discovered Bradley was alive. A motion for new trial was filed pursuant to
New trials, in cases of felony, shall be granted the defendant for the following causes and no other:
* * * * * *
(5) Where any material witness of the defendant has, by force, threats or fraud, been prevented from attending the court, ....
Attached to the motion was an affidavit of Bradley. In the affidavit she swore that she witnessed the fight between Washington and Deary, that they were both intoxicated on alcohol and drugs, and that Washington was acting in self-defense when she inflicted the knife wounds. She also swore that she had been severely beaten
Appellant complains of this action of the trial court in her third ground of error which we will deal with initially. While we have been able to find no case by the Court of Criminal Appeals explicitly formulating a test under the above quoted part of Article 40.03 of the Code of Criminal Procedure, we are of the opinion that in order to obtain a new trial thereunder, the following elements must be shown:
- Force, threats or fraud that prevented a witness from being discovered or making an appearance; despite
- Diligence on the part of counsel in discovering the absent witness and what his testimony would be or in attempting to have a known witness appear in court, see Mitchell v. State, 494 S.W.2d 865 (Tex.Cr.App.1973);
- Materiality of the witness’ testimony;
- Competency of the testimony and that it is not merely cumulative, corroborative, collateral or impeaching, See Honea v. State, 585 S.W.2d 681 (Tex.Cr.App. 1979).
In the case before us we cannot fault appellant for lack of diligence. The incident was investigated and the resulting information showed Bradley to be dead. It is also clear that the reason this information was given to the investigator was because of force used against Bradley to convince her to remain unavailable as a witness. The remaining questions concern the testimony itself.
It is unquestioned that Bradley witnessed the altercation. Although her testimony in that respect may be corroborative of appellant‘s story, she was an independent witness whose evidence tended to establish self-defense on the part of appellant. Furthermore, her testimony concerning the threats made and carried out against her in an attempt to make her testimony unavailable to the court is beyond appellant‘s testimony and personal knowledge. We thus hold Bradley‘s testimony would not be merely cumulative or corroborative as the State suggests. Carlisle v. State, 549 S.W.2d 698 (Tex.Cr.App.1977).
We are aware of the authority concerning materiality of newly discovered evidence under
In view of this holding it is not necessary for us to address the contentions of appellant concerning ineffective assistance of counsel.
The judgment of the trial court is reversed and the cause is remanded for a new trial.