Bingham v. State

CLINTON, Judge,

dissenting.

A jury convicted Appellant of arson and assessed punishment at confinement for fifteen years and a fine of $1,000.00. The Court of Appeals reversed the conviction, finding that the trial court reversibly erred in failing to include an instruction concerning accomplice testimony pursuant to Article 38.14, V.A.C.C.P. Bingham v. State, 833 S.W.2d 538 (Tex.App.—Dallas, 1992). We granted the State’s petition to consider whether an instruction concerning accomplice testimony is required when that accomplice did not testify and the accomplice’s out-of-court statements were admitted under exceptions to the hearsay rule.

Peggy MeCallum, Appellant’s sister-in-law and neighbor, testified that on numerous occasions Appellant told her he was planning to set fire to his mobile home in order to collect the insurance money because he and his wife, Tammy, were in financial difficulty. Over Appellant’s objection and under the eo-con-spirator exception to the hearsay rule, the trial court permitted MeCallum to testify to hearsay testimony, viz: she asked appellant and Tammy to trade her refrigerator for theirs if they were really going to set fire to the trailer. They agreed, and did so. On September 10, 1990, first Tammy and then Appellant came over to McCallum’s home. Appellant asked to use the bathroom, walked to the back bedroom, and yelled that their trailer was on fire.

The fire marshall for the city of McKinney and a criminal investigator testified that they found evidence of accelerants at the scene. They believed the fire had been intentionally set.

Misty Edwards, a former girlfriend of Appellant’s brother, testified she visited Appellant, Tammy, and Appellant’s brother shortly before the fire occurred. She stated she *15thought they were acting secretive and she asked Tammy why. Over Appellant’s objection and pursuant to Tex.R.Crim.Evid., Rule 803(24), the statement against interest exception, the trial court permitted Edwards to testify that Tammy told her they were going to burn the trailer to get the insurance money.1 Misty left the trailer and returned about an hour later to find the trailer on fire.

Paul Raleeh, a criminal investigator for the McKinney Police Department, testified that his investigation of the fire revealed it to be the product of arson. He interviewed Tammy at the police station. He testified she told him that Appellant and she had planned and talked about setting the fire and that Appellant set the fire. Appellant’s objection to this testimony was overruled because the trial court believed the statement was admissible under Rule 803(24). Raleeh also stated that he did not intend to file charges against either Tammy or McCallum, although he agreed both were parties to the offense.

Appellant requested that the court’s charge to the jury include an accomplice witness instruction for the statements attributed to Tammy. The trial court refused the request. An accomplice testimony instruction was given for McCallum’s testimony.

The court of appeals reviewed caselaw concerning who is considered an accomplice witness and the requirement for corroboration under Article 38.14, V.A.C.C.P. The court noted that corroboration is required because an accomplice witness is a discredited witness whose testimony is untrustworthy and should be viewed with caution. Bingham, supra at 542. Finding this same concern applied when statements of a non-testifying accomplice were admitted pursuant to a hearsay exception, the Court of Appeals held that such statements should be treated as accomplice witness testimony. Therefore, the instruction under Article 38.14 was required. Otherwise, the State could call a third party to testify to the accomplice’s statements and avoid the need of corroborating testimony. This would permit the State to do indirectly that which it could not do directly. Bingham, supra at 544. The court of appeals acknowledged a case on point to the contrary, but declined to follow it. See Navejar v. State, 760 S.W.2d 786 (Tex.App.—Corpus Christi 1988, pet. ref'd), which held that an accomplice witness charge was not required when statements from a non-testifying accomplice were admitted under an exception to the hearsay rule. But the court was guided instead by Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971), and Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972), cases which did not directly address this issue. The Court of Appeals concluded the trial court erred in failing to instruct the jury in accord with Article 38.14 and that one accomplice may not corroborate another.

The State argues Article 38.14 specifies that an accomplice instruction is required only for accomplice “testimony.” 2 The State asserts that an out-of-court statement by a non-testifying witness is not testimony. The State contends the Court of Appeals has ignored the plain meaning of “testimony” within Article 38.14 and converted Bingham’s out-of-court statements to testimony in conflict with this Court’s opinion in Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991), concerning interpretation of statutes.

When interpreting statutory language, we attempt to determine its “plain meaning.” Boykin, supra at 785. If literal application of the plain language does not lead to absurd consequences we do not look beyond the text of the statute in interpreting it. Id. at 785-786. To determine the plain meaning of *16statutory language, we may consult sources such as Black’s Law Dictionary.

The dictionary defines “testimony” as “[e]vidence 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 1324 (6th ed. 1990). See also Ex parte Jackson, 470 S.W.2d 679, 682 (Tex.Cr.App.1971). Testimony is generally described as oral statements made by a person under oath in a court proceeding. People v. Pic'l, 114 Cal. App.3d 824, 873-874, 171 Cal.Rptr. 106, 134 (Cal.Ct.App.1981); see also People v. Sully, 53 Cal.3d 1195, 1230, 283 Cal.Rptr. 144, 154, 812 P.2d 163, 183-184 (1991). This plain meaning derived from a common source like the dictionary defines testimony as statements from a live witness speaking under oath or affirmation or as statements given by a competent witness under oath. Therefore, under the plain meaning of “testimony,” Tammy’s out-of-court statements admitted through Edward’s testimony at trial are merely hearsay statements of a non-testifying accomplice. They are not testimony because the statements themselves are not related by the declarant accomplice who is testifying under oath or at trial under oath.

Interpreting Article 38.14 in light of this plain meaning shows that it applies to statements related by an accomplice while testifying at trial under oath or statements made under oath in a court proceeding. Statements attributed to a non-testifying accomplice are not testimony and do not fall under Article 38.14. Because Tammy Bingham’s out-of-court statements were not testimony, an instruction concerning accomplice witness testimony under Article 38.14 was not required.

The concern expressed by the Court of Appeals regarding the untrustworthy nature of accomplice witness statements and the need for an instruction under Article 38.14 is addressed by the protections built into the principles guiding admission of evidence pursuant to the hearsay rules and exceptions thereto. The hearsay exceptions are based upon the reliability and trustworthiness of certain types of out-of-court statements to protect against the untrustworthy nature of hearsay statements. The statements in the instant case were admitted pursuant to the hearsay rules and hearsay principles which govern admissibility, trustworthiness, and reliability. Rule 803(24), by its terms, requires corroboration for trustworthiness: “A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Reliability of the statement is the main concern. Rule 803(24) addresses that by requiring corroboration to ensure the trustworthiness of such statements.3

Accordingly, because the accomplice’s statements were not accomplice witness testimony so as to be governed by Article 38.14, the Court of Appeals erred in finding fault in the trial court’s refusal to include an accomplice witness instruction as to Tammy Bing-ham in the jury charge. The Court errs to conclude otherwise. I therefore respectfully dissent.

McCORMICK, P.J., and CAMPBELL, J., join.

. Rule 803(24) provides, in relevant part:

"A statement [is not excluded by Tex.R.Cr. Evid., Rule 802] which ... at the time of its making ... so far tended to subject [the declar-ant] to ... criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

. Article 38.14, supra, reads:

"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.”

. We are not called upon to decide in this cause, and I therefore express no opinion, whether Tammy’s out-of-court statement against her penal interest (if it was) was sufficiently trustworthy, insofar as it also implicated appellant, to be admissible against him at his trial, consistent with the corroboration requirement of Rule 803(24). See Cofield v. State, 891 S.W.2d 952 (Tex.Cr.App. 1994).