Aguilar v. State
| Decision Date | 18 June 1986 |
| Docket Number | No. 966-83,966-83 |
| Citation | 715 S.W.2d 645 |
| Parties | Gilbert Hernandez AGUILAR, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Arch C. McColl, III, S. Michael McColloch, David W. Coody, Rod Ponton, Dallas, for appellant.
Henry Wade, Dist. Atty., Karen Chilton Beverly, Janis Warder & Steven Miller, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was indicted for murder. On his plea of not guilty he was convicted by a jury of voluntary manslaughter. At punishment the State offered one prior conviction and the jury assessed punishment at life imprisonment.
Appellant asserted selfdefense. The State called as a witness Mildred Williams, who lived with appellant at the time of the offense. Appellant objected to her being called on the ground that Williams was his common law wife. The trial court found after a pretrial hearing that the witness was not the common law wife of appellant, and refused appellant's request to submit the issue to the jury. The Dallas Court of Appeals held this ruling to be harmless error. Aguilar v. State, 658 S.W.2d 802 (Tex.App.--Dallas 1984). We granted appellant's petition for discretionary review to examine that holding.
The evidence at trial showed that appellant and the witness Ms. Williams lived together at the Alamo Plaza Hotel in Dallas. On Thanksgiving Day, 1981, they had invited several friends and relatives to their small two room apartment. Some time after the meal began that evening the deceased arrived. Witnesses described him as loud, very drunk, and obnoxious; the deceased stayed on after the other guests had departed. Appellant did not testify at trial but his statement to police was introduced into evidence after the trial court found it to be voluntary. According to that statement, appellant began cleaning up and taking trash out of the apartment. When he returned to the kitchen he found that the deceased "had his hands on Mildred." Appellant didn't say anything, but when the same thing happened again appellant took a shotgun from the closet and told the deceased to leave. According to appellant's statement the deceased stood up, said something threatening, and took a step toward appellant. "I thought [the deceased] was going to jump me." Appellant raised the shotgun and fired once, killing the deceased.
The only other witness to the shooting was Mildred Williams. Appellant objected to her testimony, claiming she was disqualified to testify against him because she was his common law wife. A pretrial hearing was held, after which the trial court allowed her testimony. Appellant requested a charge to the jury on the law of common law marriage, and an instruction that if the jury found Williams to be appellant's common law wife they should disregard her testimony. See Huffman v. State, 450 S.W.2d 858 (Tex.Cr.App.1970). The requested instruction was denied.
Our first inquiry is whether appellant put on sufficient evidence to raise the issue of common law marriage. We find that the issue was raised. Mildred Williams gave the following testimony in the pretrial hearing:
Williams gave essentially the same testimony before the jury:
Other defense witnesses testified to the same effect, including appellant's brother:
The State contradicted appellant's assertion with the testimony of police officers who had been called to the scene of the shooting. The officers testified that Williams had identified herself at the scene as appellant's girlfriend, rather than wife, and had given as her address one other than appellant's.
At the end of the pretrial hearing the trial court announced,
The trial court appears to have well understood the law of common law marriage. However, its opinion as to whether one existed in this case is not determinative. The proper procedure would have been the one appellant requested, to submit the issue to the jury, with an instruction to disregard the witness's testimony if they found she was the common law wife of appellant. Huffman, supra. "The existence of a common law marriage is an issue of fact to be determined by the trier of fact," Hightower v. State, 629 S.W.2d 920 (Tex.Cr.App.1982). See also Brooks v. State, 686 S.W.2d 952 (Tex.Cr.App.1985). The right to have the issue presented to the jury may be waived if such an instruction is not requested, Hightower, supra; Krzesinski v. State, 169 Tex.Cr.R. 178, 333 S.W.2d 149 (1960), but that was not the case here.
It is not necessary for the trial court to give the issue to the jury if it has not been raised by the evidence. Lackey v. State, 638 S.W.2d 439 (Tex.Cr.App.1982). In Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), the evidence showed that the witness who was the alleged common law spouse of the defendant was in fact already married to another man. Thus as a matter of law she could not have entered a common law marriage with the defendant, and there was no error in the trial court's refusal to submit the issue to the jury.
In the instant case, however, the issue was raised by the evidence, both in the pretrial hearing and before the jury. The elements of a common law marriage are:
(1) living together as husband and wife;
(2) the parties' representing to others that they are married; and
(3) an agreement to be married.
V.T.C.A. Family Code, § 1.91(a)(2).
The third element seems to have been a matter of some confusion in the criminal law of this State for the last forty years. The civil cases cite the element properly, an agreement to be married. Claveria's Estate v. Claveria, 615 S.W.2d 164 (Tex.1981); Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). The criminal cases, though, usually list this requirement as an agreement to become married. Bodde, Hightower, both supra. Judge McCormick tracked down the apparent source of this confusion in his opinion in Lackey, supra. The source of the "becoming" language seems to be Welch v. State, 151 Tex.Cr.R. 356, 207 S.W.2d 627 (1948), which cited a 1927 civil case, Texas Employers Insurance Association v. Soto, 294 S.W. 639 (Tex.Civ.App.--El Paso 1927, writ dism'd). The latter case held:
"To constitute the marital relation of husband and wife at common law... there must be a mutual assent or agreement, express or implied, between the man and woman to become then and thenceforth husband and wife and, pursuant to such consent or agreement, followed up by a living together in such agreed relationship." Id., at 640.
Welch in citing this passage left off the phrase "then and thenceforth," and it has been left off ever since. Lackey, supra, at 443. This has led to the misconception that the third element of common law marriage is an agreement to become married at some time in the future. That is not the case. The confusion has been exacerbated by the language of some cases that the parties must have an intention to be presently married. "Presently" is defined as both "before long: without undue delay" and as "at the present time: now," Webster's New Collegiate Dictionary, 1979. It is the latter definition that applies to this element. A present intention to be married in the future is not enough. The parties must intend to be husband and wife from the moment of the agreement onward. "Present agreement to be married is a necessary element of common law marriage and it is not sufficient to agree on present cohabitation and future marriage," Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App.--Tyler 1975, no writ).
It is not clear appellant's counsel understood this distinction. While some of Williams' testimony evinces an agreement between herself and appellant to be already married, other testimony showed an agreement to be married by "actually getting a marriage license" at some time in the future. Appellant's counsel in eliciting this testimony seems to have fallen into the trap laid by Welch, supra, in 1948.
The testimony that appellant and Williams planned to be married "by a justice of the peace or a preacher" at some time in the future is not, however, conclusive evidence that no common law marriage existed already. Section 1.91(b) of the Family Code says, "the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married." Williams testified to both the elements that give rise to the inference of agreement, as well as to the fact that she and appellant considered themselves already married, and to their intention to be ceremonially married some time in the future. It is true this may raise competing inferences. However, an intention to be ceremonially married on some future occasion does not necessarily negate the inference that the...
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