error in recital of date of an offense after date of conviction and judgment used for enhancement does not make judgment void
How later courts described this case
- error in recital of date of an offense after date of conviction and judgment used for enhancement does not make judgment void
Written by the judges who cited it.
The opinion
STEWART, Justice,
dissenting.
I respectfully disagree with the majority’s holding that the testimony by Mildred Williams was not “against” Aguilar and therefore whether she is his common-law wife is immaterial. I would sustain Aguilar’s third ground of error; that the trial court erred in failing to submit his requested charge on the existence of a common law marriage between himself and Williams.
The majority recognizes the well established rule that a wife shall not, except under limited circumstances, testify against her husband. Tex.Code Crim.Proc.Ann. art. 38.11 (Vernon 1979). The State does not urge any of the exceptions to the rule that are provided by article 38.11; rather, the State responds that appellant and Williams were not married, and consequently, Williams was qualified to testify.
Aguilar asserts that the relationship between himself and Williams constituted a *807 common law marriage. If Williams was appellant’s common law wife, she was disqualified as a witness for the State. Bush v. State, 159 Tex.Cr.R. 43 , 261 S.W.2d 158, 159-60 (1953). Thus, the first question to be determined is whether a common-law marriage existed. The elements of a common-law marriage are: (1) an agreement by the parties to be married; (2) a living together as husband and wife after the agreement; and (3) a representation to others that they were married. Tex.Fam.Code Ann. § 1.91(a)(2) (Vernon 1975); Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.1974) (and cases cited therein). Moreover, the agreement may be inferred if it is proved that the parties lived together as husband and wife and represented to others that they were married. Tex.Fam.Code, Section 1.91(b).
In this case, both Aguilar and Williams testified they had lived together as husband and wife for some five months and that they had to some extent represented to others that they were married. Their testimony was self-contradictory about whether they had a present agreement to be married or an agreement to be married in the future. In addition, Aguilar produced other witnesses to testify as to the existence of a common-law marriage. The existence of a common-law marriage was clearly raised by the evidence. In such a situation the proper procedure is to submit the question to the jury with appropriate instructions defining common-law marriage and to require the jury to disregard the witness’ testimony in the event it determined a marriage existed. Huffman v. State, 450 S.W.2d 858 (Tex.Cr.App.1970); Almaraz v. State, 377 S.W.2d 197 (Tex.Cr.App.1964); Krzesinski v. State, 169 Tex.Cr.R. 178 , 333 S.W.2d 149 (1960).
The majority responds by stating that Williams did not testify “against” appellant and, therefore, her status as wife or concubine is immaterial. The record reflects the incident took place in a small room (approximately 10' X 10') with only Williams, appellant ¿nd the deceased present. On direct examination by the State, Williams testified:
Q: And then did Gilbert, Mr. Aguilar, take a shotgun and shoot Doug with it?
A: I saw him go to the closet, and if he got the gun out I thought maybe he might be just showing Doug the gun or something. It never dawned on me that they had got in an argument or anything.
* * * * * *
Q: Isn’t it a fact that Mr. Aguilar wasn’t acting mad or showing any emotion?
A: Well, if they were, I didn’t notice it.
* * * * * *
Q: Isn’t it a fact that you told the police that you don’t know why Mr. Aguilar shot Doug?
A: If they had any words, I didn’t hear it.
Q: You don’t know why—
A: That’s right.
Q: —why he shot him, do you?
A: I don’t.
Q: You were right there in the apartment; is that correct?
A: Yes, ma’am.
In addition, on direct examination by the State, Williams denied that Aguilar accused her of flirting with deceased and she finally admitted she told the police she saw him load the shotgun. I would hold that Williams’ testimony indirectly, if not directly, contradicted appellant’s version of the incident contained in his confession. Aguilar did not testify at the trial, and he was urging self-defense. Williams was the only eye witness. Her physical condition and the loud rock music were factors to be considered by the jury in weighing her failure to corroborate appellant’s confession, but her lack of corroboration may also have caused the jury to conclude that Aguilar’s version of the incident did not happen. In view of the jury’s verdict, Williams’ testimony cannot be deemed harmless. I would hold that Williams testified “against” Aguilar and, therefore, whether she was his common-law wife was material.
Finally, we have no waiver of error here. Although Aguilar did not object to the charge after his requested instruction was *808 denied, error may be preserved by either objection to the charge or by a requested instruction. Tex.Code Crim.Proc.Ann. art. 36.15 (Vernon Supp.1982-1983); Hightower v. State, 629 S.W.2d 920, 924 (Tex.Cr.App.1981). Aguilar’s third ground of error should be sustained. Accordingly, I would reverse the judgment and remand this case for new trial.