Bingham v. State

BAIRD, Judge,

dissenting.

The majority’s strained effort to reverse the judgment of the Court of Appeals results in the creation of three arcs which come together to form a perfect circle.

I.

The first arc is premised upon the untenable supposition that only in-court accomplice testimony need be corroborated because there is no chance that out-of-court accomplice statements are fabricated. Ante, 913 S.W.2d at 210-211. The majority provides no authority for this preposterous position because there is none. But, there is a wealth of authority holding just the opposite.

In-court statements are presumptively more reliable than out-of-court statements. Out-of-court statements have many dangers, e.g. the declarant might be lying, or might have misperceived the events which she relates or might have faulty memory, or her words might have been misunderstood or taken out of context by the listener. On the other hand, those dangers are minimized for in-court statements because the witness is under oath, aware of the gravity of the proceedings and subject to the pains and penalties of a perjury prosecution if the witness testifies falsely, the jury has the ability to observe the witness’ demeanor and the opposing party has the right of cross-examination. See, Williamson v. U.S., — U.S.-, 114 S.Ct. 2431 , 129 L.Ed.2d 476 (1994), and cases cited therein, and, Cofield v. State, 891 S.W.2d 952 (Tex.Cr.App.1994). Consequently, the majority opinion is based upon a fundamentally flawed premise, namely that out-of-court statements are more reliable than in-court statements.

*214 II.

Perhaps because it recognizes the flaw in the first arc, the majority attempts to divert attention from its opinion by attacking me and the opinions in Wilson v. State, 250 S.W. 1038 (Tex.Cr.App.1923), and Goodwin v. State, 307 S.W.2d 264 (Tex.Cr.App.1957). The majority states: “[t]he parties did not allude to these cases either on direct appeal or on original submission before this Court.” Ante, 913 S.W.2d at 212. And the majority notes the Court of Appeals did not cite either case. Personal attacks, while evidently in vogue, are out of place, especially when the judge is criticized for expending the effort to research a question of law pending before the Court. 1 In fact, a judge would be remiss in his duties if he relied only on the cases cited by the parties. We are bound by our own precedent even when such is not discovered by the parties or the lower courts.

Aside from the personal criticism, the majority fails to explain why there was no criticism of Wilson and Goodwin on December 21, 1994, when our original opinions were delivered. Wilson and Goodwin are not “hopelessly in conflict” with Stovall v. State, 283 S.W. 850 (Tex.Cr.App.1926) (Opinion on rehearing). Ante, 913 S.W.2d at 212-213. Stovall has no bearing on the instant issue.

Stovall was a county commissioner charged with accepting a bribe from Bibb. Id. 283 S.W. at 852 . Green, an accomplice witness, testified about several conversations between Bibb and Stovall wherein Stovall agreed to accept Bibb’s bribe. Bibb did not testify. The trial judge instructed the jury that Green was an accomplice witness whose testimony required corroboration. However, the trial judge did not provide a similar instruction with regard to Bibb’s out-of-court statements. Id. 283 S.W. at 852-854 . On appeal Stovall contended the jury should have been instructed that Bibb was an accomplice and that his acts or declarations could not corroborate Green’s testimony. Id. 283 S.W. at 856 . This Court disagreed, finding the facts in Stovall distinguishable from Wilson because Bibb’s statements were made during the course of and in furtherance of the conspiracy. 283 S.W. at 856 . Statements made by co-conspirators were then, and are now, admissible. See, Tex.R.Crim. Evid. 801(e)(2)(E). Therefore, Stovall is distinguishable and Wilson and Goodwin control the instant case. 2 Consequently, the second arc of the majority opinion fails.

III.

With the foregoing in mind, let me turn to the third arc which is the remanding of this case to the Court of Appeals.

On direct appeal, appellant contended the trial judge erred in admitting Tammy’s out-of-court statements. The Court of Appeals did not address that point of error but will be forced to do so on remand. This point of error requires reversal because Tammy’s statements were not admissible as statements against interest. In Cofield v. State, the State introduced the statements of Co-field’s co-defendant. The Court of Appeals held the statements were inadmissible and we agreed. Cofield v. State, 857 S.W.2d 798, 805 (Tex.App. — Corpus Christi 1993), and, 891 S.W.2d 952 (Tex.Cr.App.1994). In such situations, statements against interests are admissible only if the declarant is the defendant on trial. They are not admissible at the trial of a co-defendant or accomplice. Id. 891 S.W.2d at 956 . So Tammy’s statements were not admissible under Tex.R.Crim.Evid. 803(24).

However, an accomplice’s ou1>of-court statements may be admissible if made in furtherance of a conspiracy. See, Tex. R.Crim.Evid. 801(e)(2)(E). ‘Where there is sufficient independent evidence to establish a *215 conspiracy, hearsay acts and statements of a conspirator which are made during the course of and in furtherance of the conspiracy are admissible against another conspirator.” Denney v. State, 558 S.W.2d 467, 469 (Tex.Cr.App.1977). But co-conspirator statements are not always admissible. In Deeb v. State, 815 S.W.2d 692 (Tex.Cr.App.1991), the trial judge admitted the statements of a co-conspirator, made while the co-conspirator was in jail after the termination of the conspiracy. We held such statements were inadmissible because they were not made “during the course of the conspiracy.” Id. at 696 . See also, Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983). Similarly, Tammy’s statements were not made during the course of or in furtherance of the conspiracy. Consequently, the trial court erred in admitting the statements.

So what the majority opinion stands for is that out-of-court statements of an accomplice do not require corroboration, but what the majority does not tell the reader is that such statements are not admissible. The result it that we are reversing the judgment of the court of appeals which reversed the judgment of the trial court, and we are remanding the case to the court of appeals knowing they will again reverse the trial court’s judgment.

IV.

The three arcs are now in place and we can see a perfect circle. Nothing has been accomplished. Our jurisprudence is not enriched and we appear as the cat chasing its tail. The majority’s tortured logic and strain to affirm appellant’s conviction is to no avail.

There is an old equitable maxim that equity will not require the doing of a useless thing, nor will it lend its powers to accomplish a useless purpose, nor will it grant a decree which does not confer any real benefit or effect any real relief. Boman v. Gibbs, 443 S.W.2d 267, 272 (Tex.App. — Amarillo 1969). Therefore, even if the majority’s premise was not fundamentally flawed and even if there were no cases on point requiring a different result, we should follow the spirit of that maxim and dismiss this petition as improvidently granted. Instead, we do a useless act and everyone here knows it. I can only throw up my hands in disgust.

For these reasons and those in my concurring opinion on original submission, I dissent.

OVERSTREET, J., joins this opinion.

MALONEY, J., joins part III of this opinion and otherwise dissents.

. This criticism is strange coming from Judge Clinton who cited the "Greater Austin Telephone Directory" in Richardson v. State, 865 S.W.2d 944, 953, n. 8 (Tex.Cr.App.1993). That source was not relied upon by either of the parties or the Amarillo Court of Appeals.

. The majority is critical of Wilson and Goodwin because they do not "expressly hold” that out-of-court statements of accomplices must be corroborated. Ante, 913 S.W.2d at 212. This criticism is strange coming from Judge Clinton who, in Crittenden v. State, 899 S.W.2d 668, 672 (Tex.Cr.App.1995), did away with the pretext arrest doctrine on the basis of the "implicit" or "tacit" holdings in two unrelated cases.