Bingham v. State

BAIRD, Judge,

concurring.

This case turns upon how broadly we interpret Tex.Code Crim.Proc.Ann. art. 38.14. I agree with the majority that “testimony,” as used in art. 38.14, includes the out-of-court statements of an accomplice. In my view, an interpretation of art. 38.14 which limited accomplice testimony to sworn, in-court testimony, would lead to an absurd result in violation of Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991).

I.

A brief recitation of the facts is necessary. Peggy McCallum testified that appellant and his wife, Tammy Bingham, stated they planned to burn their trailer home in order to collect insurance proceeds. McCallum asked to exchange refrigerators with appellant and Tammy before the fire and the refrigerators were exchanged. The trailer home was later destroyed by fire.

Misty Edwards testified that shortly before the fire Tammy stated “they were going to burn down the trailer to get the insurance money out of it.” At that time, Edwards noticed that appellant and Tammy had a different refrigerator.

Paul Raleeh, of the McKinney Police Department, conducted an arson investigation, in the course which he interviewed Tammy. Over appellant’s objection, Raleeh testified that Tammy admitted she and appellant planned the fire, but that appellant actually set the fire.1

The court’s charge permitted the jury to determine whether McCallum was an accomplice. Appellant requested two additional instructions: First, that because Tammy was an accomplice her statements required corroboration before the jury could convict; and, second, that because Tammy was an accomplice her statements could not be used to corroborate McCallum’s testimony. The trial judge denied the requested instructions.

II.

The Court of Appeals conducted an extensive analysis of art. 38.14, and our case law concerning accomplice witnesses.2 The Court held Tammy was an accomplice witness, that her out-of-court statements required corroboration under art. 38.14 and, therefore, the trial judge erred in refusing appellant’s requested instruction that a conviction could not be had upon Tammy’s statements alone.3 The Court stated:

... The State’s most incriminating evidence against appellant was McCallum’s testimony and [Tammy’s] statements as related through testifying witnesses. The charge impermissibly allowed the jury to convict on the uncorroborated evidence of accomplices.

Bingham v. State, 833 S.W.2d 538, 545 (Tex. App. — Dallas 1992).

The Court of Appeals also considered appellant’s second requested instruction, namely, that the jury could not use Tammy’s statements to corroborate McCallum’s testimony. Recognizing that one accomplice may not corroborate the testimony of another, the Court held:

*12... If the jury decided McCallum was an accomplice, then it could have used [Tammy’s] out-of-court statements to corroborate McCallum’s testimony. If both [Tammy] and McCallum were accomplices ... the trial court’s failure to instruct the jury that one accomplice could not corroborate the other resulted in some harm.

Id, 833 S.W.2d at 544.

Consequently, appellant’s conviction was reversed for two separate reasons.4

III.

Our interpretation of a statute must serve to effectuate the legislative intent underlying the statute’s enactment. Ex parte Groves, 571 S.W.2d 888, 893 (Tex.Cr.App.1978); and, Dillehey v. State, 815 S.W.2d 623, 625 (Tex. Cr.App.1991). To do so, we first focus on the literal text of the statute. Boykin, 818 S.W.2d at 785. If a literal application of the statute will not lead to an absurd result, we give effect to that language. Id. at 785-786. However, if a literal application of the plain language of a statute leads to an absurd result, we look beyond the statute to its subject matter, reason and effect, and adopt a construction which will promote the purposes for which the legislation was passed. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Cr. App.1980); and, Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963). The State contends only in-court testimony by an accomplice requires corroboration. However, for the following reasons, I believe such a limited interpretation of art. 38.14 would lead to an absurd result and conflict with established precedent.

An accomplice is one who participates with another before, during, or after the commission of a crime. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Cr.App.1987); Creel v. State, 754 S.W.2d 205, 213 (Tex.Cr.App.1987); Harris v. State, 645 S.W.2d 447 (Tex.Cr.App. 1983); Russell v. State, 598 S.W.2d 238, 249 (Tex.Cr.App.1980); and, Villarreal v. State, 576 S.W.2d 51 (Tex.CrApp.1978). If the witness may be prosecuted for the offense with which the defendant is charged, the witness is an accomplice. Gamez, 737 S.W.2d at 322. And if a witness implicates herself in the same offense for which the defendant is charged, the witness is an accomplice. Kerns v. State, 550 S.W.2d 91, 94 (Tex.Cr. App.1977); and, Gonzales v. State, 766 S.W.2d 395, 398 (Tex.App.—Austin 1989). Accomplice testimony alone will not support a conviction. Cast v. State, 164 Tex.Crim. 3, 296 S.W.2d 269 (1956). Art. 38.14 requires corroboration of the accomplice testimony “by other evidence tending to connect the defendant with the offense committed” and one accomplice cannot corroborate another. Goodwin v. State, 165 Tex.Crim. 375, 307 S.W.2d 264, 267 (1957).5

An interpretation of art. 38.14 which limited accomplice testimony to in-court testimony would produce the absurd result of permitting a conviction based on accomplice evidence alone. As the Court of Appeals noted:

Failure to instruct the jury on the accomplice witness rule allows the State to call a third party to testify to the accomplice’s statements and avoid the need of corroborating testimony. Such a practice permits the State to do indirectly that which it cannot do directly.

Bingham, 833 S.W.2d at 543-544.

Accomplice evidence is inherently unreliable and corroboration should be required regardless of how the evidence comes to be admitted. Tammy’s out-of-court statements are no more reliable than McCallum’s in-*13court testimony. Both must be viewed with suspicion because they arise from a corrupt source. Certainly, McCallum had no more motive to make untrue statements during her in-court testimony than Tammy had when being interviewed by Raleeh. As the Court of Appeals noted, a third party relating an accomplice’s statement does not add credibility to that statement. Bingham, 833 S.W.2d at 543.

This interpretation of art. 38.14 is consistent with established precedent. In Wilson v. State, 94 Tex.Crim. 348, 250 S.W. 1033 (1923), the defendant was charged with robbery and an accomplice witness testified Wilson “looks like the man that was with me that night.” Id., 250 S.W. at 1034. The sheriff interviewed a third party, De Beau-ford, who stated that he lent Wilson a pistol to commit the robbery. Id., 250 S.W. at 1035. At trial, the sheriff testified to De Beauford’s out-of-court statements. We held:

... According to the sheriffs account of De Beauford’s admissions, the latter was himself an accomplice. ... If De Beau-ford had been called as a witness in person, being an accomplice, he could not have corroborated [the accomplice witness]. ... If the state had labored under this disadvantage in the face of the personal testimony of De Beauford, we are not able to perceive by what process of reasoning its condition was improved by his hearsay statements put in evidence through the sheriff.

Id Thus, even though De Beauford did not testify, we required corroboration of his out-of-court statements.

In Goodwin v. State, 165 Tex.Crim. 375, 307 S.W.2d 264, 267 (1957), we considered whether an accomplice’s out-of-court statement may corroborate another accomplice’s testimony. Goodwin was charged with the arson of a building. Two accomplice witnesses testified that, through Raymond McClendon, Goodwin hired them to burn the building. The accomplice witnesses further testified that McClendon provided a key to the budding. Id., 307 S.W.2d at 266. McClendon did not testify. We held:

There is no question but that the facts abundantly establish the guilt of [the accomplice witnesses] of attempting to commit arson. ... For appellant to be guilty, then the testimony of the aforesaid witnesses must be corroborated by other evidence tending to connect appellant with the offense charged.
McClendon did not testify as a witness in the case. There is an entire absence of any testimony that he came into possession of the key from the appellant.
The testimony of the accomplices showed that McClendon was so connected with the crime as to make him an accomplice witness, which fact would have required corroboration of his testimony had he testified in the case.
Any statement by McClendon that the key belonged to the appellant was that of an accomplice and, being uncorroborated, was insufficient to establish that the key was furnished by appellant. Moreover, one accomplice cannot corroborate another.

Id, 307 S.W.2d at 267.

Therefore, we have consistently required corroboration of an accomplice statement regardless of where the accomplice statements were made.

IV.

Although art. 38.14 presents two possible interpretations, only the majority’s interpretation is consistent with our precedent and will effectuate the legislative intent of art. 38.14. The State’s interpretation would yield absurd results.

With these comments, I join the majority opinion.

MALONEY, Judge.

Appellant’s wife was an accomplice and coconspirator; her incriminating statement to the police investigator was inadmissible under the coeonspirator rule of evidence since she did not make the statement “during the course and in furtherance of the conspiracy.” Tex.R.CRIM.Evid. 801(e)(2)(E); see *14also Deeb v. State, 815 S.W.2d 692, 696-97 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1228, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992).

Under the sixth amendment to the federal constitution and article one, section ten of the state constitution, an accused has the right to confront an adverse witness. U.S. Const. amend VI; Tex. Const. art. I, § 10. In certain eases, the Confrontation Clause precludes the admissibility of evidence that would otherwise be admissible under an exception to the hearsay rule. Holland v. State, 802 S.W.2d 696, 699 (Tex.Crim.App. 1991). A coconspirator’s statement admitted under the coconspirator rule of evidence does not deprive an accused of his rights under the Confrontation Clause.1 Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2781-82, 97 L.Ed.2d 144 (1987).

Over objection, the trial court erroneously admitted the statement of the defendant’s wife not made in furtherance of the conspiracy, who was not on trial, against the defendant as a statement against her penal interest under Tex.R.CRIM.Evid. 803(24). Admitting a coconspirator’s statement under the statement against penal interest exception when such statement is inadmissible under the coconspirator rule of evidence violates the requirements established as a predicate for the admissibility of a cocon-spirator’s statement. The statement against interest exception should not be viewed as a means to circumvent the coeon-spirator rule of evidence. Cf. Williamson v. United States, — U.S. -, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (federal rule of evidence 804(b)(3), statement against penal interest exception, should be narrowly construed; portions of codefendant’s statement against interest that implicated defendant not admissible). To the extent that cases hold otherwise, they should be overruled. E.g., McFarland v. State, 845 S.W.2d 824, 835 (Tex.Crim.App.1992), pet. for cert. filed, Mar. 9, 1993.

Unfortunately, the issue of the statement’s admissibility was not presented to this Court. I do not agree that the issue as presented merits our review and would therefore deem it improvidently granted. Accordingly, I can only concur in the judgment which affirms the Court of Appeals.

. As the majority notes, Tammy’s statement was admitted as a statement against interest under Tex.R.Crim.Evid. 803(24). Majority op. pg. 10. The admission of this statement is questionable under Cofield v. State, 891 S.W.2d 952, 954-955 (Tex.Cr.App.1994). However, the Court of Appeals did not address this issue and it is not before us.

. Tex.Code Crim.Proc.Ann. art. 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice 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.

.This holding is the basis for the State’s ground for review which states:

The Court of Appeals erred in finding the out-of-court statements of an unavailable witness as constituting testimony of an accomplice which required an accomplice corroboration instruction to the jury.

. Although the correctness of the second reason for the reversal is not before us, I pause to note that the Court of Appeals was correct in its resolution. In Aston v. State, 656 S.W.2d 453, 454 (Tex.Cr.App.1983), we held:

... if one witness is an accomplice as a matter of law and the jury could find another witness to be an accomplice, the trial court must submit an instruction to the jury that one accomplice cannot corroborate another accomplice.

. To determine whether an accomplice's testimony is corroborated we eliminate all accomplice evidence from the record and determine whether other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Cr. App.1993); Infante v. State, 612 S.W.2d 603 (Tex. Cr.App.1981); Graham v. State, 643 S.W.2d 920, 924 (Tex.Cr.App.1981); Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983); and, Gosch v. State,: 829 S.W.2d 775, 777 (Tex.Cr.App.1991).

. Statements admitted under the coconspirator rule of evidence are not hearsay. Tex.R.Crim. Evid. 801(e)(2)(E).