Chambliss v. State

• Decision Date: 16 February 1983
• Docket Number: No. 569-82,569-82
• Citation: 647 S.W.2d 257
• Parties: Kelly Joe CHAMBLISS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 257

647 S.W.2d 257

Kelly Joe CHAMBLISS, Appellant, v. The STATE of Texas, Appellee.

No. 569-82.

Court of Criminal Appeals of Texas,

en banc.

Feb. 16, 1983.

Mary Lou Cassidy, court appointed, Midland, for appellant.

Vern F. Martin, Dist. Atty. and Robert L. Sutphen, Asst. Dist. Atty., Midland, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

After a jury trial, appellant was found guilty of murder and sentenced to ninety-nine years in prison. His appeal was originally to this court, but after the 1980 amendments to Article Five of the Texas Constitution altered the state's appellate framework, we transferred the cause to the Eighth Supreme Judicial District Court of Appeals. Rejecting all of appellant's eleven grounds of error, that court affirmed his conviction. Chambliss v. State, 633 S.W.2d 678 (Tex.App.--El Paso, 1982). We granted appellant's petition for discretionary review, primarily to consider his bold contention that under Section Five of Article 38.22, V.A.C.C.P., as amended in 1977, oral statements that do not "stem from custodial interrogation" are admissible only for the purpose of impeachment.

We begin by setting out the facts pertinent to this contention. Appellant was arrested for murder on July 19, 1979, and placed in the Midland County jail. On that date, one Gary Dwayne King was incarcerated in tank 3 of the jail, charged with burglary, attempted burglary, and misdemeanor theft. King testified at trial that he met appellant on July 25th, 26th, or 27th, when he approached appellant because "Midland County jail don't allow you to smoke and he came in with a package of cigarettes...." Until that time, appellant had apparently been kept in a single cell, and King had not seen him before.

For no reason "other than curiosity," King testified, he brought up the subject of the murder charge against appellant. ¹ In the conversation that followed, appellant gave a detailed account of his activities on the night of the murder, concluding that the confession that he had personally shot the victim, Sergeant J.B. England. According to King, however, appellant had told him he was thinking about giving a false statement blaming his co-defendant, Raymond Mathis, for the murder, in retaliation for a statement Mathis had made. Finally, King related that appellant had said that the murder "wasn't on his conscience, that maybe it should be, but it wasn't."

According to King, another "jailmate," Roger Browning, witnessed his conversation with appellant. Browning himself did not testify, however; King said Browning had been "transported" to Shreveport, Louisiana. King denied that at the time he talked to appellant, he had any intention of alerting "the authorities" of anything he might learn. It was not until a few days later that it occurred to him that he might mention the conversation to Captain Tony Roye, a jailer with whom King "always got along good." On cross-examination, King admitted that he later went to the district attorney "partly" because the information might gain him something, but disclaimed any knowledge of a plea bargain and said he had been promised nothing. It was brought out, though, that after telling of his conversation with appellant, King was released on bail, ending over a month's stay in jail. At the time of trial, moreover, King was staying at the Sheraton, with the district attorney's office "picking up the bill."

Appellant concedes that since King was not a police officer and no "interrogation" occurred, his statement to King did not "stem from custodial interrogation" within the meaning of Article 38.22, § 5, V.A.C.C.P. ² Arguing that the legislative history of Article 38.22 is not a history of "people who have great faith in the honesty of mankind," however, appellant urges that Section 5 be construed so that "jailhouse conversations and other overheard remarks" would be admissible only to impeach a defendant who testifies, and not as substantive evidence of guilt offered in the State's case-in-chief. According to appellant, it is "preposterous" to believe that such statements were meant to be admissible on the question of guilt or innocence, so that "anyone can now testify about anything the defendant says in custody, so long as he is not being interrogated, even though the person so testifying is jailed for a crime and has a strong motive for pleasing the prosecution by what he says on the stand." ³

The key to appellant's argument is an imaginative reading of Section 5 of Article 38.22. At the time appellant allegedly unburdened himself to Gary King, Article 38.22 provided, in pertinent part:

"Sec. 3. (a) An oral statement of an accused made as a result of custodial interrogation is admissible against the accused in a criminal proceeding for the purpose of impeachment only and when:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is told that a recording is being made;

(3) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(4) the recording device was capable of making an accurate recording, that the operator was competent, and that the recording is accurate and has not been altered;

(5) the statement is witnessed by at least two persons; and

(6) all voices on the recording are identified.

(b) Every electronic recording of any statement made by an accused during custodial interrogation must be preserved until its destruction is permitted by order of a district court of this state.

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Sec. 4. When any statement, the admissibility of which is covered by this article, is sought to be used in connection with an official proceeding, any person who swears falsely to facts and circumstances which, if true, would render the statement admissible under this article is presumed to have acted with intent to deceive and with knowledge of the statement's meaning for the purpose of prosecution for aggravated perjury under Section 37.03 of the Penal Code. No person prosecuted under this subsection shall be eligible for probation.

Sec. 5. Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law." Tex.Code Crim.Pro.Ann., Art. 38.22 (Vernon 1979) (Appellant's emphasis)

Emphasizing the restrictive clause, "that has a bearing upon the credibility of the accused as a witness," appellant contends that this clause should be read to modify not just the words, "or of a voluntary statement, whether or not the result of custodial interrogation," but also the words, "or of a statement that does not stem from custodial interrogation." Under appellant's construction, then, Section 5 would read, in pertinent part: "Nothing in this article precludes the admission of ... a statement that does not stem from custodial interrogation ... that has a bearing upon the credibility of the accused as a witness...." Thus rearranged, Section 5 would restrict the use of statements not stemming from custodial interrogation (be they to cellmates or not) to impeachment purposes only.

Grammatically speaking, it might seem that the clause, "that has a bearing upon the credibility of the accused as a witness," qualifies or restricts only the immediately preceding words, "or of a voluntary statement, whether or not the result of custodial interrogation." Appellant seems to concede that this interpretation is natural, but implicitly argues that his reading is also grammatically possible (a conclusion we will accept, without resort to the byegone practice of "diagramming," whereby sentences were broken into their component parts to see what words "went with" what). In this connection, appellant maintains that we should not apply a venerable doctrine of statutory construction: the "Doctrine of Last Antecedent," whereby "a qualifying phrase must be confined to the words and phrases immediately preceding it to which it may be applied without impairing the meaning of the sentence...." City of Corsicana v. Willman, 147 Tex. 377, 216 S.W.2d 175, 176 (1949). If that doctrine were applied here, of course, the pertinent part of Section 5 would be read this way: "Nothing in this article precludes the admission of ... a statement that does not stem from custodial interrogation ..."--period.

There is more here than it might seem. As appellant says, the real issue is legislative intent. Citing Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973), appellant rightly points out that before Article 38.22 was amended in 1977, "cellmate testimony" like King's would have been inadmissible for any purpose. This was so because under the pre-1977 statute, an oral statement made in jail or in custody was admissible only if it fell within one of three exceptions to the general rule of inadmissibility:

(1) where it was a voluntary statement taken in an examining court;

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