Campbell v. State

• Decision Date: 17 September 1986
• Docket Number: No. 1018-84,1018-84
• Citation: 718 S.W.2d 712
• Parties: Louis King CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 712

718 S.W.2d 712

Louis King CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

No. 1018-84.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

John J. Browne (court appointed), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Jan Krocker, Asst. Dist. Attys., Houston; Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was indicted and convicted by a jury for the offense of murder. See V.T.C.A. Penal Code, § 19.02. The jury assessed punishment at life imprisonment in the Texas Department of Corrections. Appellant urged seven grounds of error in his appeal to the First District Court of Appeals in Houston, but the Court of Appeals affirmed his conviction in an unpublished opinion. Campbell v. State, No. 01-83-0755-CR (August 23, 1984). By petition for discretionary review to this Court, appellant raised five grounds of review. We granted appellant's petition on grounds of review four and five, which claim that the trial court erroneously allowed the prosecution to bolster the testimony of its witness, Ms. Oakreter Jackson, by evidence of prior consistent statements. We will reverse the judgment of the Court of Appeals.

Appellant killed the deceased in appellant's front yard on Saturday night, July 2, 1983, by striking him in the head with a heavy object. The people at the scene and appellant's neighbors did not volunteer any information to the officers investigating the homicide. One month later, however, the police were informed by the Crime Stoppers Program that Jackson was a witness, and Jackson subsequently gave statements to the police.

Jackson was the State's eyewitness at trial. She testified that she was on the porch of the house across the street when an argument began between appellant and the deceased, evidently over some lawnmowers belonging to the deceased that appellant had sold. Jackson stated that appellant was handling an iron bumper jack during the argument, and that when the deceased turned to walk away, appellant struck him from behind with the jack. The deceased started to turn and face appellant, when appellant struck him again in the forehead, fatally wounding him. Jackson testified that appellant then removed an envelope from the deceased's shirt pocket (the envelope purportedly contained money that the deceased had shown to appellant during the argument), went into his house to change his clothes, and left the scene.

Appellant and two eyewitnesses for the defense testified to a different version of the incident. They said that there was no argument about lawnmowers, that the deceased brandished a knife, that the blow was delivered by a piece of lumber that appellant picked up in the yard in response to this provocation from the deceased, that the deceased was threatening to get a gun when appellant struck him (only once), and that they did not see Jackson around the scene at all. Appellant's entire case turned on self-defense, which his witnesses supported and Jackson refuted. The jury apparently believed Jackson.

After Jackson testified for the State on direct examination, the defense attorney opened a number of avenues of impeachment on cross and recross examination. Jackson testified that she had never been intimately involved with appellant, which was refuted by defense witnesses, that she had not been convicted of any crimes involving moral turpitude, which was refuted by a conviction for theft, and that she had never used the name "Broadway," which was also refuted by the documents showing her conviction. The defense attorney also asked her if she had been paid for the reporting of the crime, and if so, when and how much. She stated that she had been paid one month after giving the information.

Jackson was later returned to the stand to rehabilitate herself by describing why she did not realize she had actually been convicted, and by stating that she did not think that the defense attorney had used the exact name "Broadway" when questioning her on that issue. The State also elicited her testimony that she received the $400.00 from the Crime Stoppers Program in September, a month and a half after her initial statements to the police were made, and that she was not receiving any additional money for testifying at the trial.

Detective Osterberg, the last witness called, testified for the State on rebuttal. Over objection, he was asked about his three prior conversations with Jackson that began with her approaching him through Crime Stoppers. He testified that she said the "same things" in each conversation or statement, and that "[s]he has never changed her story. It has always been the same."

During closing argument, the defense attorney referred to Jackson as "the four hundred dollar witness," and said, "here they want you to believe a woman who a month later turns in a man for four hundred dollars...." The prosecutor responded in closing argument by stating that Jackson was a believable witness because "she told Detective Osterberg the same thing each time she talked to him." Defense counsel's objection to this statement was sustained over the prosecutor's argument that what the prosecutor alluded to was in evidence.

Appellant's grounds of review numbers four and five complain that the Court of Appeals erred: (a) in holding that the prosecutor's bolstering of Jackson was not improper and did not constitute reversible error; and (b) in holding that the trial court's admission of evidence over objection of Jackson's prior consistent statements, when no predicate had been laid for the admission of such evidence, was proper. In response to the latter, we must answer two questions regarding the admissibility of prior consistent statements:

1) whether the predicate for such statements was laid in this case; and

2) whether such statements were admissible although they were made at a time when the motive to fabricate was present.

The prevailing rule for criminal cases in Texas is set out in Rains v. State, 146 S.W.2d 176, 178 (Tex.Cr.App.1940):

"In Browney v. State, 128 Tex.Cr.R. 81, 79 S.W.2d 311, 315, the rule is stated as follows: 'It is well settled that where a witness has been impeached by showing that he made other and different statements in regard to the matter than those testified to by him on trial, he can be supported by showing that he made similar statements to those testified to by him recently after the occurrence. However, if the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is inadmissible.' "

On Motion for Rehearing, this Court in Rains, supra, thoroughly reviewed Texas precedent, found that the above-stated rule has been consistent from the beginning, and reaffirmed it. Id. at 179-180.

Under this rule, appellant makes a strong case on both counts: that there was no predicate laid that Jackson made prior inconsistent statements, which would open the door to evidence of prior consistent statements; and that the prior consistent statements about which evidence was admitted were made at a time when the motive to fabricate--the reward money--existed.

The Court of Appeals found against appellant on both issues. It held that the defense challenged Jackson's credibility by "implying that she had fabricated her story to collect the Crime Stoppers' reward and to get even with the appellant." Campbell, supra at 5. It continued, "[a]lthough the statements by Ms. Jackson to the police investigator were given after she had received the Crime Stoppers' reward money [which is not strictly true, but close enough because the motivation was present when all the statements were made], that merely affected the weight, not the admissibility of the rehabilitation testimony." Id. (Emphasis and comment added.) The latter comment is a misstatement of the controlling rule, and we reverse the Court of Appeals for the reasons developed below.

With regard to the second question, admissibility of the statement after the predicate is laid, our holding on this issue follows the precedent set out in Rains, supra at 178.

" ' ... [I]f the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is inadmissible.' "

Prior consistent statements then are not admissible if they were made after the motive for fabrication came into existence.

It is appropriate at this juncture to examine the continued viability of Rains, supra, in light of the recent promulgation of new rules of evidence in Texas. On December 18, 1985, this Court promulgated the new Texas Rules of Criminal Evidence [cited as Tex.R.Cr.Evid.], which were effective on September 1, 1986. Germane to this case is the rule regarding a witness' prior consistent statement, set forth in Tex.R.Cr.Evid. 801(e)(1), which states that a statement is not hearsay if:

... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,....

This rule is simply a codification of well established Texas caselaw. ^* Under the new rule of criminal evidence or under Texas caselaw, a proper predicate for admission is laid when the witness testifies at trial and is subject to cross-examination about the statement and there has been an express or implied charge against him of recent fabrication or improper influence or motive. In the instant case, the witness Jackson did testify, was subject to cross-examination and was expressly charged with improper motive and fabrication concerning the statement. Thus, a proper predicate for admission of the prior consistent statement was established.

With regard to the second question, the admissibility of the...