Davis v. State

OPINION

KELLER, Judge,

delivered the opinion of the Court,

in which MeCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of capital murder and sentenced to death. See Tex. Penal Code Ann. § 19.03 (a)(2) (Vernon 1994); Tex. CRiM. PROC.Code Ann. art. 37.071, § 2 (Vernon Supp.1997). Appeal to this Court is automatic. Tex.Crim. PROC.Code Ann. art. 37.071, § 2(h) (Vernon Supp.1997). Appellant raises thirty points of error. We will affirm.

In point of error twenty-two appellant contends that the trial court erred in denying his request to admit his former testimony under Texas Rule of Criminal Evidence 804(b). Appellant testified at a pre-trial suppression hearing. At trial he sought to introduce the transcript of his former testimony. He argued that, under Rule 804, if a person has testified in a proceeding concerning a material issue, and both sides have had an opportunity to cross-examine the witness, and the person invokes a privilege and refuses to testify, the prior testimony should be admitted at trial. Appellant did invoke his Fifth Amendment right not to testify thus becoming, according to him, unavailable within the meaning of the rule. The trial court refused to admit the transcript, saying, “If that rule applies to a defendant, the Appellate Court is going to have to say so.” We decline the invitation.

Rule 804(a) provides in part that a declar-ant is not unavailable if his exemption from testifying is procured by the party offering the declarant’s testimony:

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

Tex.R.CRIM. Evid. 804(a). In the present case, appellant was exempt from testifying because he invoked his privilege against self-incrimination. By invoking his Fifth Amendment privilege, appellant procured this exemption for the purpose of preventing *157 himself from testifying as a witness. And appellant was the proponent of his prior testimony. Therefore, under the plain language of the rule, appellant was not unavailable.

Two courts of appeals have come to the conclusion that a defendant who invokes his Fifth Amendment privilege does not become unavailable under Rule 804 when he seeks to offer his own prior testimony. See Castro v. State, 914 S.W.2d 159 (Tex.App.—San Antonio 1995, pet. ref'd); Dennis v. State, 961 S.W.2d 245 (Tex.App.—Houston [1st Dist.] 1997, no pet.). Both courts of appeals’ opinions relied expressly upon the provision of Rule 804(a) quoted above. Castro, 914 S.W.2d at 168 ; Dennis, at 245. Likewise, the Fifth Circuit, in reaching the same conclusion, relied upon a similarly worded provision in Federal Rule of Evidence 804(a). United States v. Kimball, 15 F.Sd 54, 55-56 & 56 n. 5 (5th Cir.1994); see also United States v. Peterson, 100 F.3d 7, 13-14 (2nd Cir.1996) (following Fifth Circuit’s lead in interpreting the last paragraph of Federal Rule 804(a)).

The cases cited by appellant as controlling authority are easily distinguished. In Bryan, the defendant testified at his first trial but invoked his Fifth Amendment privilege at his second trial. Bryan v. State, 837 S.W.2d 637, 639 (Tex.Crim.App.1992). At the defendant’s second trial, the State offered the defendant’s testimony from the first trial. Id. The exception to unavailability found in Rule 804(a) did not apply because the State was the proponent of the evidence, and the State did not procure the defendant’s invocation of his Fifth Amendment privilege. 1 Rodela and Davis involved the testimony of persons other than the defendant. Rodela v. State, 829 S.W.2d 845, 849 (TexApp.—Houston [1st Dist.] 1992, no pet.); Davis v. State, 773 S.W.2d 592, 593 (Tex.App.—Eastland 1989, pet. ref'd). 2 Hence, the exception to unavailability did not apply.

Because appellant was not “unavailable” within the meaning of Rule 804, the trial court did not err in refusing to admit the transcript of appellant’s prior testimony. We overrule point of error twenty-two.

We affirm the judgment of the trial court.

BAIRD, J., filed a concurring opinion, in which OVERSTREET and MEYERS, JJ., joined.

WOMACK, J., filed a concurring opinion.

. In his concurring opinion, Judge Baird contends that our holding that Bryan is inapplicable is devoid of analysis. That is simply untrue. Our analysis is based on the plain meaning of the last sentence of Rule 804(a). The State does not control whether a defendant invokes his right not to testify; the defendant does. Therefore, the defendant procures his own exemption from testifying; the State does not. Notably absent from Judge Baird's opinion is any response to this argument. Judge Baird further contends that our application of the rule is not even-handed. The procurement provision in Rule 804(a) is inapplicable to the State here simply because it is the opposite party — not because it is the "State.” If the State were to procure the absence of a witness, then the State would be barred from using that witness’ former testimony by the hearsay rule, even though the defendant could utilize the witness' former testimony under Rule 804. An example of "unilateral" unavailability that works against the State is discussed in Jones v. State, 843 S.W.2d 487, 491-492 (Tex.Crim.App.1992)(witness who testifies at grand jury proceedings but later invokes Fifth Amendment privilege at defendant's trial is unavailable to the defendant but not unavailable to the State because the State could grant the witness immunity).

. Similarly, Judge Baird’s reliance upon Jones is misplaced because the witness in that case was someone other than the defendant, and the defendant did not procure the witness’ absence. In fact as discussed in footnote two, Jones recognized that a witness could be unilaterally unavailable to the defendant under the rules.