the defendant’s Sixth Amendment right to compulsory process was violated when the trial court denied a motion for new trial based on newly available testimony that was "admissible and not merely cumulative, corroborative, collateral, or impeaching; and [the] materiality was such as would probably bring about a different result on another trial”
How later courts described this case
- the defendant’s Sixth Amendment right to compulsory process was violated when the trial court denied a motion for new trial based on newly available testimony that was "admissible and not merely cumulative, corroborative, collateral, or impeaching; and [the] materiality was such as would probably bring about a different result on another trial”
- “At the hearing [on the motion for a new trial] appellant offered the testimony of [co-defendant] at his own trial to show what his testimony would have been if [co-defendant] had testified at appellant’s trial.”
- “A defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United States Constitution.”
- “[I]n some cases where an accused’s constitutional rights are in conflict with a valid procedural rule of law the procedural rule must yield to the superior constitutional right.”
Written by the judges who cited it.
Later courts went against this
Questioned by Cheyenne Pate v. State (1998)
the Whitmore exception has been questioned by later decisions.
Distinguished
Distinguished by Earley v. State, 1985 Tex. App. LEXIS 12191 (1985)
Therefore, we hold that Whitmore is inapplicable here.
The opinion
OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.
The State’s motion for leave to file a motion for rehearing was granted and after reconsideration we overrule the State’s motion for rehearing, having decided that the matter was properly disposed of in the majority opinion by then Commissioner Dally delivered April 4, 1977.
When this case was originally heard and decided, this Court consisted of five Judges. At that time Judge Vollers was State’s Attorney and actively participated in the appeal of this case. Accordingly, pursuant to Article 5, Sec. 11, of the Texas Constitution, Judge Vollers certified his disqualification to the Honorable Dolph Briscoe, Governor of the State of Texas, who then appointed the Honorable Thomas M. Reavley, a former Associate Justice of the Supreme Court of Texas, to replace the Honorable Judge Vollers to hear and determine the State’s motion for rehearing in this appeal.
The State’s motion for rehearing is overruled.
ROBERTS, PHILLIPS and DALLY, JJ., and REAVLEY, Special Judge, join in this opinion.