Bingham v. State

OPINION ON STATE’S MOTION FOR REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

On original submission in this cause, a plurality of the Court held that the court of appeals did not err to interpret Article 38.14, V.A.C.C.P. to require corroboration of a hearsay statement of a non-testifying accomplice to the offense before that statement can be considered by the jury in its deliberations upon appellant’s guilt. Three judges dissented with opinion to this holding, one judge did not participate, and one judge concurred only in the result, opining that the issue was not of sufficient importance to merit our review. Given the indefiniteness of our disposition of the issue on original submission, and in the face of a persuasive motion from the State Prosecuting Attorney, we granted rehearing in this cause.

PLAIN MEANING IN CONTEXT Article 38.14 reads:
“A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

The issue here is whether out-of-court statements of an accomplice to the charged offense constitute “testimony” under this provision, such that the corroboration requirement adheres. On original submission a plurality of the Court held that, under the broadest dictionary definition of the word, viz: “evidence based on observation or knowledge[,]” an accomplice’s out-of-court statement may be considered “testimony.” The New Merriam-Webster Dictionary (1989), at 741. The Code of Criminal Procedure provides that “[a]ll words, phrases and terms used [therein] are to be taken and understood in their usual acceptation in common language, except where specially defined.” Article 3.01, V.A.C.C.P. Because “usual acceptation” of the word “testimony” embraces out-of-court statements, the plurality reasoned, we are not at liberty to construe it any more narrowly. “Rather, when read in context, such words should be open to the broadest possible understanding to which they are reasonably susceptible in the English language. Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App.1992).” Slip op. at 3.

Of course the plurality was correct to begin its analysis with the text of Article 38.14 itself, for that is the best indicator of legislative intent. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). And “if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted for it, we ordinarily give effect to that plain meaning.” Id. (Footnote omitted). On reflection, however, we conclude that the plurality focused too narrowly on the word “testimony” itself, paying insufficient attention to the context in *210which the word appears in the statutory text. While common acceptation of an unspecial-ized word is certainly critical, it is the common acceptation of the word in the context in which it appears that is determinative. V.T.C.A. Government Code, § 311.011(a). It seems clear enough to us that, in the context of Article 38.14, the “testimony” that must be corroborated is the legally understood kind— the kind even the plurality on original submission conceded is “the most common ordinary definition,” slip op. at 2—viz: “Evidence given by a competent witness under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is particular kind of evidence that comes to tribunal through live witnesses speaking under oath or affirmation in presence of tribunal, judicial, or quasi-judicial.” Black’s Law Dictionary (6th ed. 1990), at 1476.

In isolation, a word can have various shades of meaning, and may even have several, mutually exclusive meanings. The State Prosecuting Attorney points to the word “conviction” as it appears variously in the Code of Criminal Procedure. He argues that no one would contend that, when the Code refers to “conviction,” it means “the state of being convinced: strong belief.” The New Merriam-Webster Dictionary, supra, at 175. It is, indeed, our conviction that this is not the intendment of the Code. The problem in the instant case is slightly different, of course. The debate here is not which of two different meanings to assign a word in a particular statutory setting. Here the question is whether to assign the word “testimony” its “broadest possible understanding,” as the plurality did on original submission, slip op. at 3, or a narrower, more technical, but also more common definition that is subsumed within the broader one. Though the question is, thus, slightly different than that posed by the State’s example, the key to resolving it is much the same. We must decide whether the broader or narrower meaning is meant according to the context in which it appears in the statute as a whole.

It is sufficiently plain to us that the language of Article 38.14 invokes the narrower, more common definition of “testimony.” The provision begins: “A conviction cannot be had ...” But of course, a conviction cannot be had at all outside of a court of law. From this we may infer that the “testimony” that must be corroborated is that which is adduced “through live witnesses speaking under oath or affirmation in presence of tribunal[.]” Black’s Law Dictionary, supra. That such “testimony” must be corroborated by “other evidence” serves to strengthen this inference—that is, unless we are to assume the word “evidence” here is also to be given the “broadest possible understanding,” to encompass more than just “matter submitted in court to determine the truth of alleged facts.” The New Merriam-Webster Dictionary, supra at 261. But there is about as much chance the Legislature intended a more expansive definition of “evidence” as that by “conviction” it meant “strong belief.” Clearly, in context, the “other evidence” referred to in Article 38.14 is “evidence” adduced “in presence of tribunal.” So, too, do we construe the “testimony” contemplated by Article 38.14 to be of the narrower, evidentiary kind, the kind adduced in open court by live witnesses under oath.

AMBIGUITY

But let us assume, for the sake of argument, that the meaning of “testimony” is not as plain, even in context, as it appears to us to be. We would then have to admit that the statute is ambiguous; that it lends itself to “being understood in more than one way.” The New Merriam-Webster Dictionary, supra, at 40. In that event we would be authorized, under the Court’s statutory construction analysis in Boykin, to consult “extra textual factors” to resolve the ambiguity. 818 S.W.2d at 785. Such factors include the “object sought to be attained;” “legislative history;” and the “common law[.]” V.T.C.A. Government Code, § 311.023, subsections (1), (3) & (4), respectively. The State Prosecuting Attorney persuasively argues that these factors militate in favor of the more narrow, and more common, understanding of “testimony.”

The State Prosecuting Attorney directs us to Wigmore’s treatise on evidence. Discussing the common-law rule that accom*211plice witnesses should be corroborated, Wig-more explained the policy behind the rule as follows:

“The reasons which have led to this distrust of an accomplice’s testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him, provided he helps them to secure the conviction of his partner in crime[.] * * * It is true that this promise of immunity or leniency is usually denied, and may not exist; but its existence is always suspected. The essential element, however, it must be remembered, is this supposed promise or expectation of conditional clemency. If that is lacking, the whole basis of distrust fails. We have passed beyond the stage of thought in which his commission of crime, self-confessed, is deemed to render him radically a liar. The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule.”

7 Wigmore, Evidence § 2057 (Chadbourn rev. 1978), at 417 (emphasis supplied). It is only when the accomplice takes the witness stand that the “supposed promise or expectation of conditional clemency” that justifies the rule becomes apparent. The danger that an accomplice may “fabricate” in any other context than in open court is simply not great enough to invoke application of the rule, because the self-interest is not so manifest.

Moreover, as noted in the dissenting opinion on original submission, slip op. at 4-5, an accomplice’s out-of-court statement is objectionable unless made under circumstances sufficiently indicative of reliability that it may be admitted as an exception to the hearsay rule. In the context of this ease that means that the out-of-court statements of Tammy Bingham were admissible, if at all, only as statements against penal interest, a hearsay exception that is subject to a corroboration requirement of its own, albeit different in character from the corroboration Article 38.14 requires. See Tex.R.Cr.Evid., Rule 803(24); Davis v. State, 872 S.W.2d 743, 749 (Tex.Cr.App.1994) (“the evidence of corroborating circumstances must clearly indicate trustworthiness.”); Cofield v. State, 891 S.W.2d 952 (Tex.Cr.App.1994) (accomplice’s out-of-court statement may be admissible under Rule 803(24), even to the extent it also inculpates accused, given sufficient corroborating circumstances). Bearing in mind this independent requirement of reliability of out-of-court accomplice statements, together with the reduced aura of self-interest that surrounds them, we have every reason to believe that the Legislature simply did not regard such statements with the same degree of suspicion as it did an accomplice witness who testifies in court. By this reckoning, we but effectuate the legislative intent when we read Article 38.14 to embrace only the in-court “testimony” of an accomplice.

ABSURDITY

In the view of both the court of appeals below, and the concurring opinion on original submission, the Legislature could not possibly have meant for Article 38.14 to be construed as we have done today. The court of appeals complained that to insulate an out-of-court accomplice statement from the corroboration requirement “permits the State to do indirectly that which it cannot do directly.” Bingham v. State, 833 S.W.2d 538 at 544 (Tex.App.1992). For essentially the same reason Judge Baird believes that our present construction of the statute is “absurd.” Slip op. at 3-4.

The same extratextual considerations that resolve any ambiguity in use of the word “testimony” also make it apparent, however, that to read Article 38.14 to require corroboration only of in-court testimony of an accomplice witness does not reap “absurd” results. Absent the accomplice’s personal presence and imprimatur in a court of law, the “supposed promise or expectation of conditional clemency” that Wigmore assures us is “essential” to justify the rule is lacking. There is nothing inherently absurd in failing to require corroboration under these circumstances. It is even less absurd when we *212consider that other evidentiary rules ensure some circumstantial guarantee of reliability before an out-of-court statement of an accomplice will withstand objection. The Supreme Court of California has construed a nearly identical provision of its statutory law just as we construe our own Article 38.14 today, without any apparent concern for “absurd results.” See People v. Sully, 53 Cal.3d 1195, 1230, 283 Cal.Rptr. 144, 164, 812 P.2d 163, 183 (1991) (“The usual problem with accomplice testimony — that it is consciously self-interested and calculated — is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.”). Construing a statute according to its plain import is not “absurd” merely because members of this Court do not favor that construction. We do not believe that our narrow, contextual interpretation of Article 38.14 is remotely absurd.

PRIOR PRECEDENT

In his concurring opinion on original submission Judge Baird also cited two opinions from this Court for the proposition that out-of-court statements from an accomplice witness must be corroborated under Article 38.14. See Wilson v. State, 94 Tex.Cr.R. 348, 250 S.W. 1033 (1923) and Goodwin v. State, 165 Tex.Cr.R. 375, 307 S.W.2d 264 (1957). The State Prosecuting Attorney argues that we should not consider ourselves bound by these opinions. “Neither of those cases held that a jury instruction relating to corroboration of accomplice testimony was required when a third party testifies to an out-of-court declaration by an accomplice. Instead, in both cases it was held that an out-of-court declaration of an accomplice was not sufficient to corroborate accomplice testimony.” State Prosecuting Attorney’s Motion for Rehearing, at 16. Still, in Wilson, at least, the reason the accomplice’s out-of-court statement would not corroborate an in-court accomplice’s testimony is that “one accomplice cannot corroborate another[.]” 94 Tex.Cr.R. at 353, 250 S.W. at 1035. It seems, then, that Wilson at least inferentially supports the proposition that out-of-court accomplice statements must be corroborated under the statute. Goodwin can be read to support the same inference, albeit in dicta. If that is the law, then presumably the trial court was obliged to instruct the jury to that effect, pursuant to Article 36.14, Y.A.C.C.P.

Thus, there is some minimal force to Judge Baird’s contention that our decision in this cause is constrained by the doctrine of stare decisis. Indeed, the United States Supreme Court has recently reiterated that “[rjespect for precedent is strongest in the area of statutory construction, where Congress is free to change the Court’s interpretation of its legislation.” Hubbard v. United States, 514 U.S. -, at -, 115 S.Ct. 1754, at 1763, 131 L.Ed.2d 779, at 792 (1995) (internal quotes omitted). However, neither Wilson nor Goodwin expressly holds that out-of-court statements of accomplices must be corroborated under the terms of the statute. The parties did not allude to these cases either on direct appeal or on original submission before this Court. The court of appeals did not cite them in support of its judgment. That no one has yet cited these cases is no surprise, for neither has ever been relied upon for the proposition that Judge Baird now cites them for. A quick check reveals that Shepard’s Texas Citations lists a combined total of five later case citations for Wilson and Goodwin, only one of which relates to the issue at hand.

That case, Stovall v. State, 104 Tex.Cr.R. 210, 283 S.W. 850 (1926) (Opinion on rehearing), expressly rejected the argument that Wilson can be read to require a jury instruction that an accomplice’s out-of-court statement must be corroborated, and cannot be used to corroborate another accomplice. See id., 104 Tex.Cr.R. at 224, 283 S.W. at 856 (“In [Wilson ] we were discussing sufficiency of the evidence and not the propriety of an instruction. * * * If appellant’s contention were sound, then in every case where one conspirator was called by the state as a witness, and the acts or declarations of other conspirators were proved by parties not connected with the crime, and these acts and declarations supported the testimony of the conspirator, who had given his evidence, a charge similar to that sought by appellant in the instant case would be demanded. We *213think this is unsound and would be extending the rule regarding a charge upon accomplice testimony too far.”). Indeed, because it specifically involved the question of the necessity of a jury instruction, Stovall would seem closer on point than Wilson or Goodwin. The best that can be said, therefore, is that the caselaw is hopelessly in conflict. Given this conflict, Wilson and Goodwin cannot, and indeed have not, generated “significant reliance interests.” See Hubbard, supra, — U.S. at-, 115 S.Ct. at 1764, 131 L.Ed.2d at 793-94. Their status as binding precedent, at least for the proposition Judge Baird cites them for, is very much in doubt.

More importantly, neither Wilson nor Goodwin (nor, for that matter, Stovall) undertook any analysis of the statutory language, as we have done today. Instead, in both Wilson and Goodwin the Court seems to have assumed, without ever squarely addressing the question, that when Article 38.14 (actually, its antecedents) required corroboration of the “testimony” of an accomplice, it meant not just in-court testimony, but extrajudicial statements as well. For reasons already given, we do not think the plain language of the statute bears out such an interpretation. Moreover, as we have shown, such an interpretation is at odds with the rational underpinnings of the common-law rule, from which the statute derived. We therefore accept the State Prosecuting Attorney’s invitation to “disavow” Wilson and Goodwin to the extent that they conflict with our holding today. Having essentially fleshed out a rationale for the Court’s ipse dixit in Stovall, we will follow it instead.

Accordingly, we hold that the court of appeals was mistaken to conclude that the trial court should have given an instruction to the jury that Tammy Bingham’s out-of-court statement must be corroborated before the jury could rely on it for conviction. By the same token, the court of appeals erred to hold that the trial court should have instructed the jury that accomplice witnesses cannot corroborate one another. Because Tammy Bingham did not give “testimony” within the meaning of Article 38.14, it was not necessary for the jury “to scrutinize [her] out-of-court statements with the same suspicion as a testifying accomplice.” 833 S.W.2d at 543. No such instructions were required.

The court of appeals’ judgment is therefore reversed, and the cause is remanded to that court for disposition of appellant’s remaining points of error.

MEYERS, J., dissents for the reasons stated in his opinion on original submission.