Bingham v. State

• Decision Date: 15 November 1995
• Docket Number: No. 0891-92,0891-92
• Parties: Anthony Dwayne BINGHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 208

913 S.W.2d 208

Anthony Dwayne BINGHAM, Appellant, v. The STATE of Texas, Appellee.

No. 0891-92.

Court of Criminal Appeals of Texas.

Nov. 15, 1995.

Scott Lemke, McKinney, for appellant.

David Waddill, Assistant Dist. Atty., McKinney, Jeffrey L. Van Horn, Assist. State's Attorney, Robert A. Huttash, State's Atty., Austin, for the State.

OPINION ON STATE'S MOTION FOR REHEARING ON STATE'S PETITION

FOR DISCRETIONARY REVIEW

CLINTON, Judge.

On original submission in this cause, a plurality of the Court held that the court of appeals did not err to interpret Article 38.14, V.A.C.C.P. to require corroboration of a hearsay statement of a non-testifying accomplice to the offense before that statement can be considered by the jury in its deliberations upon appellant's guilt. Three judges dissented with opinion to this holding, one judge did not participate, and one judge concurred only in the result, opining that the issue was not of sufficient importance to merit our review. Given the indefiniteness of our disposition of the issue on original submission, and in the face of a persuasive motion from the State Prosecuting Attorney, we granted rehearing in this cause.

PLAIN MEANING IN CONTEXT

Article 38.14 reads:

"A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."

The issue here is whether out-of-court statements of an accomplice to the charged offense constitute "testimony" under this provision, such that the corroboration requirement adheres. On original submission a plurality of the Court held that, under the broadest dictionary definition of the word, viz: "evidence based on observation or knowledge[,]" an accomplice's out-of-court statement may be considered "testimony." The New Merriam-Webster Dictionary (1989), at 741. The Code of Criminal Procedure provides that "[a]ll words, phrases and terms used [therein] are to be taken and understood in their usual acceptation in common language, except where specially defined." Article 3.01, V.A.C.C.P. Because "usual acceptation" of the word "testimony" embraces out-of-court statements, the plurality reasoned, we are not at liberty to construe it any more narrowly. "Rather, when read in context, such words should be open to the broadest possible understanding to which they are reasonably susceptible in the English language. Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App.1992)." Slip op. at 3.

Of course the plurality was correct to begin its analysis with the text of Article 38.14 itself, for that is the best indicator of legislative intent. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). And "if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted for it, we ordinarily give effect to that plain meaning." Id. (Footnote omitted). On reflection, however, we conclude that the plurality focused too narrowly on the word "testimony" itself, paying insufficient attention to the context in In isolation, a word can have various shades of meaning, and may even have several, mutually exclusive meanings. The State Prosecuting Attorney points to the word "conviction" as it appears variously in the Code of Criminal Procedure. He argues that no one would contend that, when the Code refers to "conviction," it means "the state of being convinced: strong belief." The New Merriam-Webster Dictionary, supra, at 175. It is, indeed, our conviction that this is not the intendment of the Code. The problem in the instant case is slightly different, of course. The debate here is not which of two different meanings to assign a word in a particular statutory setting. Here the question is whether to assign the word "testimony" its "broadest possible understanding," as the plurality did on original submission, slip op. at 3, or a narrower, more technical, but also more common definition that is subsumed within the broader one. Though the question is, thus, slightly different than that posed by the State's example, the key to resolving it is much the same. We must decide whether the broader or narrower meaning is meant according to the context in which it appears in the statute as a whole.

                which the word appears in the statutory text.  While common acceptation of an unspecialized word is certainly critical, it is the common acceptation of the word in the context in which it appears that is determinative.  V.T.C.A. Government Code, § 311.011(a).  It seems clear enough to us that, in the context of Article 38.14, the "testimony" that must be corroborated is the legally understood kind--the kind even the plurality on original submission conceded is "the most common ordinary definition," slip op. at 2--viz:  "Evidence given by a competent witness under oath or affirmation;  as distinguished from evidence derived from writings, and other sources.  Testimony is particular kind of evidence that comes to tribunal through live witnesses speaking under oath or affirmation in presence of tribunal, judicial, or quasi-judicial."   Black's Law Dictionary (6th ed. 1990), at 1476
                

It is sufficiently plain to us that the language of Article 38.14 invokes the narrower, more common definition of "testimony." The provision begins: "A conviction cannot be had ..." But of course, a conviction cannot be had at all outside of a court of law. From this we may infer that the "testimony" that must be corroborated is that which is adduced "through live witnesses speaking under oath or affirmation in presence of tribunal[.]" Black's Law Dictionary, supra. That such "testimony" must be corroborated by "other evidence" serves to strengthen this inference--that is, unless we are to assume the word "evidence" here is also to be given the "broadest possible understanding," to encompass more than just "matter submitted in court to determine the truth of alleged facts." The New Merriam-Webster Dictionary, supra at 261. But there is about as much chance the Legislature intended a more expansive definition of "evidence" as that by "conviction" it meant "strong belief." Clearly, in context, the "other evidence" referred to in Article 38.14 is "evidence" adduced "in presence of tribunal." So, too, do we construe the "testimony" contemplated by Article 38.14 to be of the narrower, evidentiary kind, the kind adduced in open court by live witnesses under oath.

AMBIGUITY

But let us assume, for the sake of argument, that the meaning of "testimony" is not as plain, even in context, as it appears to us to be. We would then have to admit that the statute is ambiguous; that it lends itself to "being understood in more than one way." The New Merriam-Webster Dictionary, supra, at 40. In that event we would be authorized, under the Court's statutory construction analysis in Boykin, to consult "extra textual factors" to resolve the ambiguity. 818 S.W.2d at 785. Such factors include the "object sought to be attained;" "legislative history;" and the "common law[.]" V.T.C.A. Government Code, § 311.023, subsections (1), (3) & (4), respectively. The State Prosecuting Attorney persuasively argues that these factors militate in favor of the more narrow, and more common, understanding of "testimony."

The State Prosecuting Attorney directs us to Wigmore's treatise on evidence. Discussing the common-law rule that accomplice "The reasons which have led to this distrust of an accomplice's testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him, provided he helps them to secure the conviction of his partner in crime[.] * * * It is true that this promise of immunity or leniency is usually denied, and may not exist; but its existence is always suspected. The essential element, however, it must be remembered, is this supposed promise or expectation of conditional clemency. If that is lacking, the whole basis of distrust fails. We have passed beyond the stage of thought in which his commission of crime, self-confessed, is deemed to render him radically a liar. The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule."

witnesses should be corroborated, Wigmore explained the policy behind the rule as follows:

7 Wigmore, Evidence § 2057 (Chadbourn rev. 1978), at 417 (emphasis supplied). It is only when the accomplice takes the witness stand that the "supposed promise or expectation of conditional clemency" that justifies the rule becomes apparent. The danger that an accomplice may "fabricate" in any other context than in open court is simply not great enough to invoke application of the rule, because the self-interest is not so manifest.

Moreover, as noted in the dissenting opinion on original submission, slip op. at 4-5, an accomplice's out-of-court statement is objectionable unless made under circumstances sufficiently indicative of reliability that it may be admitted as an exception to the hearsay rule. In the context of this case that means that the out-of-court statements of Tammy Bingham were admissible, if at all, only as statements against penal interest, a hearsay exception that is subject to a corroboration requirement of its own, albeit different in character from the corroboration Article 38.14 requires. See Tex.R.Cr.Evid., Rule 803(24); Davis v. State, 872 S.W.2d 743, 749 (Tex.Cr.App.1994) ("the evidence of corroborating circumstances must clearly indicate trustworthiness."); Cofield v. State, 891 S.W.2d 952 (Tex.Cr.App.1994) (accomplice's out-of-court...