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
REAVLEY, Special Judge,
concurring.
I join the four Judges in overruling the State’s motion for rehearing, but my decision is not based upon the Sixth Amendment to the United States Constitution. My decision is based upon the nature of the newly discovered evidence in this death case; it entitles appellant to a new trial.
The trial court overruled appellant’s motion for new trial because it was untimely filed. Article 40.05, V.A.C.C.P., provides that . . for good cause shown the time for filing or amending may be extended by the court . . . ” The sufficiency of the evidence of “good cause” is subject to review on appeal. Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); see Kilpatrick v. State, 85 Tex.Cr.R. 172 , 211 S.W. 230 (1919); cf. Clopton v. State, 563 S.W.2d 930 (Tex.Cr.App.1978). Appellant filed his *901 motion only four days after the testimony of Harrell Totty first became available. Good cause for late filing of the motion is established.
The newly acquired evidence of an acquitted co-defendant has been held to require a new trial in a number of cases. See Rozell v. State, 502 S.W.2d 16, 18 (footnote 1) (Tex.Cr.App.1973).
In Rucker v. State, 7 Tex.App. 549 (1880), the Court held that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal, competent and material to the convicted defendant’s defense. The Rucker decision was followed in Gibbs v. State, 30 Tex.App. 581 , 18 S.W. 88 (1891), and in Chumley v. State, 32 Tex.Cr.R. 255 , 26 S.W. 406 (1893).
Rucker and Gibbs were followed by the Court in Sanders v. State, 52 Tex.Cr.R. 465 , 107 S.W. 839 (1908). In that case the defendant was convicted of manslaughter upon an indictment charging her with murder. The defendant herself did not shoot the deceased, but the case was tried and submitted to the jury on the theory that she had conspired with her brother, who was alleged to have fired the fatal shot that resulted in the death of the deceased. The defendant was tried first and convicted. Her brother, indicted for the same offense, could not and did not testify. After the conviction of the defendant, her brother was tried and acquitted of the same offense as that for which his sister had been convicted. The defendant then made a motion for new trial, setting up the facts of the acquittal of her brother, that his testimony was and would be material to her defense, and that she was denied the benefit of his testimony by reason of the pendency of the indictment against him. The motion for new trial set out at great length the testimony to be given by the brother. The Court held there was no doubt as to the materiality of this new testimony and found reversible error in the trial court’s overruling of the motion for new trial.
The Court recited and followed the rule of the Rucker case:
There can be no doubt at this day as to the rule or the correctness of the rule in proper cases, as now established in this State, that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal and competent and material to his defense. Sanders, 107 S.W. 840 .
The Sanders Court also relied upon the Gibbs decision, noting that it involved a conviction for murder and subsequent reversal thereof on the sole ground that the defendant in that case had been denied the testimony of a co-defendant who had subsequently been acquitted. The Court stated that the Gibbs decision “. . .is precisely in point and authority for our action in this case.” Id.
In Sylvas v. State, 68 Tex.Cr.R. 117 , 150 S.W. 906 (1912), the defendant and one Franco were indicted for murder. The defendant was convicted, and Franco was later tried and acquitted. After Franco’s acquittal, the defendant made a motion for new trial. An affidavit was attached to the motion showing that Franco testified upon his trial that he had killed the deceased and that the defendant had nothing to do with it. The Court noted that Franco could not testify at the time of the defendant’s trial, but that subsequent to the defendant’s conviction, Franco had been tried and acquitted. The Court then summarized the facts set out in Franco’s affidavit which was attached to the defendant’s motion for new trial. In substance, the affidavit recited that Franco would have testified positively that defendant had nothing to do with the alleged murder, that Franco killed the deceased in self-defense, and that his jury took his view and acquitted him. Applying Rucker, Gibbs and their progeny, the Court noted that Franco’s testimony was very material to the defendant and that the trial court should have awarded a new trial under the authority of those decisions.
*902 In Barker v. State, 73 Tex.Cr.R. 229 , 164 S.W. 383 (1914), the defendant was convicted of receiving and concealing stolen property. The State’s case was established by the testimony of a confessed accomplice. He testified that he and others burglarized a house, that the defendant knew of this burglary, and subsequently received the stolen goods. One of the accomplice’s cohorts, Decherd, was still in jail when the appellant was convicted on June 27. On July 1, after appellant’s conviction, Decherd was discharged from custody and relieved of prosecution. The defendant obtained his statement in writing and it contradicted the accomplice’s testimony on all points. This statement was appended to defendant’s motion for new trial. Following the rule laid down in the Rucker case, the Court held that the defendant was entitled to a new trial. At the time of the Barker decision, a motion for new trial had to be made within two days after conviction, but for good cause shown, the trial court could allow the motion to be made at any time before adjournment of the term at which the conviction was had. The question of timeliness was not discussed in the Barker decision, but it is apparent that the motion was untimely filed. The Court did state that the first opportunity the defendant had to avail himself of Decherd’s testimony was after the State had discharged him from custody; that Decherd’s testimony could not be used by the defendant until after he was discharged; that this occurred on the 1st of July, after defendant’s conviction on the 27th of June; and that the defendant procured Decherd’s affidavit and made the showing at the earliest practicable moment.
In Denning v. State, 120 Tex.Cr.R. 122 , 48 S.W.2d 643 (1932), the defendant and another were indicted for the possession of intoxicating liquor for the purpose of sale. Some two weeks after the appellant’s conviction, his companion was tried and acquitted. Thereupon, the defendant filed a motion for new trial so that he might have the benefit of the testimony of his companion. In applying the rule of the Rucker case, the Court affirmed the judgment because the evidence expected from the acquitted individual was not contained in the record.
These eases were decided at the time when the Texas statute prevented the co-defendant from testifying on behalf of the accused. That statute was held to be an unconstitutional infringement upon the Sixth Amendment right of an accused to have compulsory process for obtaining witnesses in his favor in Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967). We do not have state action preventing Whitmore from obtaining the testimony of Totty at the original trial, but we do have newly available evidence that may change the conviction or punishment assessed Whitmore. I would not hold that Whitmore has a constitutional right to the testimony of Totty and to a new trial. I would hold that Whitmore’s motion does state grounds for a new trial under the general rules of newly discovered or available evidence.
In deciding the motion, and in treating the procedural flaws in the present record, the overriding consideration to me is that James E. Whitmore should not be sent to his death without his peers weighing the testimony of Harrell Totty — the man who was alleged to have killed Judy Rummel at Whitmore’s hiring — but who has been freed and absolved from all crime.
It would be my preference to abate this appeal and to allow the appellant an opportunity to put his motion for new trial in proper form before the trial court considers the motion on its merits. I would permit this liberality towards procedural requirements because this is a death case. The other Judges elect either to reject appellant’s appeal or to order a new trial. Given that choice, I join in ordering the new trial and overruling the State’s motion for rehearing.
VOLLERS, J., not participating.