# Ex Parte Zerschausky > Court of Criminal Appeals of Texas · June 7, 1967 · 417 S.W.2d 279 URL: https://www.frixlaw.com/law-library/cases/9769997 ## Case - **Full name:** Ex Parte Stephen D. ZERSCHAUSKY - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 7, 1967 - **Citations:** 417 S.W.2d 279; 1967 Tex. Crim. App. LEXIS 1077 - **Precedential status:** Published - **Opinion:** Dissent by Morrison - **Judges:** Woodley, Belcher, Morrison, Onion - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769997 ## Opinion text DISSENTING OPINION MORRISON, Judge. This case was assigned to me originally, and I prepared the following opinion in which my brother ONION, J., joined. We now adopt such opinion in its entirety as our dissent in order to fully reflect our views. “On December 28, 1966, the Honorable Archie S. Brown, Judge of the 144th District Court of Bexar County, held a hearing and certified the record thereof to this Court for appropriate action under Article 11.07, V.A.C.C.P. On April 1, 1963, relator was tried in said 144th District Court under an indictment charging him with murder which resulted in a verdict of guilty with punishment assessed at 30 years. No appeal from this conviction was perfected. The thrust of relator’s contention is that he was deprived of his liberty without due process of law under the Fourteenth Amendment to the United States constitution in that he was deprived of the testimony of the three eye witnesses to the homicide because they had been separately indicted as his accessories in such homicide. In order to establish the factual support of such contention, appellant’s counsel testified at the habeas corpus hearing before the same judge who had conducted the original trial: ‘MR. SEMAAN: All right, sir. Shortly before the trial of the case, which began on April 3, I think, 1963, I had a short conversation with Judge Brown, who was the Judge that tried the case. I discussed the case of Stein v. State— and, offhand, I don’t remember the citation but I can furnish it into the record —which holds that an accessory can testify if the prosecution will waive their objection. And I told Judge Brown that I wasn’t sure whether or not he was familiar with the ruling in the case, but that I wanted him to be aware of it and that I intended to ask the District Attorney to waive his objection and let the accessories testify. If he agreed, I apprised Judge Brown of the fact that I intended to call these witnesses. If the District Attorney didn’t waive his objection, then I couldn’t call them. Judge Brown agreed with me, that that was more or less the law and to wait and see what the District Attorney’s attitude was during the trial. Now during the trial, I did ask the District Attorney if he would waive his objection and let the accessories testify; and he refused. Q. (By Mr. Leon:) Did you have the witnesses ready, willing and available to testify at that time? A. They were out in the hall ready to take the stand the minute they were called.’ The trial record clearly shows that relator’s counsel asked the District Attorney to waive his objection to the witnesses’ testifying as permitted by Stein v. State, [ 172 Tex.Cr.R. 248 ] 355 S.W.2d 723 , and that he refused to do so, but later dismissed the indictments against the witnesses. It thus appears that this constitutional question is clearly before this Court for decision, and we may not pass the same from our lips. At the hearing on the habeas corpus application it was shown that had the acces *283 sories been permitted to testify, they would have supported relator’s claim of self-defense. The only other witness to such facts was Helen Blake, who was not indicted as an accessory and was the State’s main witness. There is a long line of decisions from this Court applying Article 711, V.A.C.C.P. and Article 82, V.A.P.C. The constitutionality of such statutes was not, however, attacked until the recent cases of Washington v. State, [Tex.Cr.App.] 400 S.W.2d 756 , and Brown v. State, [Tex.Cr.App.] 401 S.W.2d 251 . The constitutionality of these statutes was upheld where the witness sought to be called by the defendant over the State’s objection was a co-principal who had been indicted and convicted of the same offense for which the defendant was on trial. In Washington v. State, supra, this Court said: ‘The legislature has the power, except as limited by the Constitution, to prescribe the competency of witnesses in all cases.’ 1 In Washington it was observed that Article 711, supra, and Article 82, supra, have welded to them the severance statutes (Articles 650-654, V.A.C.C.P.1925). Since the decisions in Washington and Brown, supra, the United States Court of Appeals for the Fifth Circuit in Bonner v. Beto, 373 F.2d 301 , held that Bonner was deprived of his liberty without due process under the Fourteenth Amendment because he was deprived by virtue of Texas Statutes of the testimony of his wife, who had been indicted and convicted of the same offense. After reviewing the history and reason for such statutes as Article 711, V.A.C.C.P. (1925) and Article 82, V.A.P.C. the Court in Bonner said: ‘The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisenba v. [People of State of] California, 314 U.S. 219 [ 62 S.Ct. 280 , 86 L.Ed. 166 ] (1941), “The adoption of the rule of her choice cannot foreclose inquiry as to whether in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law.” ’ The issue before us is not whether a defendant is deprived, under the circumstances of the case, of due process when he is not allowed to call as a witness in his behalf a co-principal who has been indicted and already convicted. The question here presented is whether this relator was denied due process under the Fourteenth Amendment in that he was deprived of the testimony of eye witnesses who were under indictment as accessories to the homicide where their testimony favorable to relator’s plea of self-defense could not be obtained by motion for severance requesting that they be first tried. Article 711, supra, in effect at the time relator was tried and convicted provided: ‘Persons charged as principals, accomplices or accessories whether in the same *284 or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.’ Articles 80, 81, and 82, V.A.P.C. provide : ‘An accomplice may be tried and punished before the conviction of the principal, and the acquittal of the principal shall not bar the prosecution against the accomplice, but on the trial of an accomplice the evidence must be such as would have convicted the principal.’ (Art. 80, V.A.P.C.) ‘An accessory may in like manner be tried and punished before the principal when the latter has escaped; but if the principal is arrested he shall be first tried, and if acquitted, the accessory shall be discharged.’ (Art. 81, V.A.P.C.) ‘Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, cannot be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in hehalf of the others.’ (Art. 82, V.A.P.C.) It is apparent from reading statutes quoted that they deny a defendant the right to the testimony of a witness who is under indictment as accessory to the crime for which he is on trial, and that the severance provision gives no relief because the principal must be tried first. We hold therefore that the application of these statutes to relator worked a deprivation of his liberty without due process of law under the Fourteenth Amendment. 2 Relator is ordered released from confinement in the Texas Department of Corrections and ordered delivered to the Sheriff of Bexar County, there to stand trial on the indictment pending against him in Cause No. 61704 in said Court. Such retrial is to be conducted in accordance with the terms of this opinion.” We respectfully dissent to the denial of the relief requested herein. ONION, J., dissented. The United States Supreme Court granted certiorari in Washington, supra, and transferred the case to the appellate docket (No. 168) placing it on the summary calendar October 10, 1966 [ 885 U.S. 812 , 87 S.Ct. 123 , 17 L.Ed.2d 54 ], to decide the question: ‘Is petitioner’s conviction and sentence void because he was denied his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States to have compulsory process in obtaining an available witness in his favor, namely a co-defendant charged and previously convicted under a separate indictment for the same transaction, and which co-defendant according to his Affidavit could have exonerated petitioner if such testimony were believed by the jury?’ 35LW 3124. . Article 711, Y.A.C.C.P. (1925) was deleted in the revision of the Code of Criminal Procedure, 1965. See Article 36.09 V.A.C.C.P. 1965. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769997. Public record. Not legal advice.