Colburn v. State

• Decision Date: 25 February 1998
• Docket Number: No. 72236,72236
• Citation: 966 S.W.2d 511
• Parties: James Blake COLBURN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 511

966 S.W.2d 511

James Blake COLBURN, Appellant, v. The STATE of Texas.

No. 72236.

Court of Criminal Appeals of Texas En Banc.

Feb. 25, 1998.

William E. Hall, Jr., Conroe, for appellant.

Michael A. McDougal, Dist. Atty., Gail Kikawa McConnell, Asst. Dist. Atty., Conroe, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MEYERS, Judge, delivered the opinion of the Court in which McCORMICK, Presiding Judge, MANSFIELD, KELLER, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of capital murder committed in Montgomery County on or about June 26, 1994. TEX. PENAL CODE ANN. § 19.03(a). The jury answered the punishment issues set out in Texas Code of Criminal Procedure Article 37.071 § 2 and the trial court sentenced appellant to death as required by Article 37.071 § 2(g). ¹ Direct appeal to this Court is automatic. Article 37.071 § 2(h). We previously abated this appeal, ² and now reinstate it and affirm the judgment of the trial court.

Appellant raises five points of error, but does not challenge the sufficiency of the evidence at either stage of trial. Therefore, we dispense with a recitation of the facts and address the points of error in the order they are presented.

In appellant's first point of error, he contends the trial court abused its discretion in sentencing appellant to death because he has an extensive history of paranoid schizophrenia. He argues the imposition of the death sentence on a severely mentally ill person violates the Eighth and Fourteenth Amendments to the United States Constitution, Article I, Section 13 of the Texas Constitution, and Article 1.09 of the Texas Code of Criminal Procedure (regarding cruel or unusual punishment). In particular, appellant points to Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), in which the Supreme Court held the Federal Constitution "prohibits the State from inflicting the penalty of death upon a prisoner who is insane." Appellant further argues imposition of the death penalty violates the Eighth Amendment because we have not articulated a legal standard by which to determine if a capital defendant is "insane" and may not therefore be executed.

Ford, supra, and related authority proscribe the execution of an insane person, not the imposition of sentence on a mentally ill person. The fact that appellant had a mental illness when he was tried and sentenced is not determinative of whether he will be sane at the moment of his execution. The proper time to argue the issue presented in appellant's first point of error is after appellant has been sentenced to death and his execution is imminent. That would also be the proper time for this Court to articulate the applicable standard for determining a capital defendant's sanity for purposes of addressing a Ford claim. Thus, appellant's Federal Constitutional claim is not yet ripe and is not properly before this Court in the instant appeal. Further, we note that the psychiatric evaluations and other information necessary to evaluate appellant's sanity at the time of execution will not necessarily be found in the record from trial. A record of such evidence is best developed in the context of a hearing held in relation to an application for writ of habeas corpus. Cf. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997)(recognizing that "[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim" and stating that while generally a claim previously raised and rejected on direct appeal is not cognizable, this doctrine should not apply "where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding"). Appellant's first point of error is overruled.

In his second point of error appellant claims the trial court abused its discretion in finding there was no valid marriage between appellant and Martha Colburn ("Martha") prior to January 11, 1990, when the couple filed a written declaration of informal marriage pursuant to Texas Family Code Section 1.92 (Vernon 1993). Appellant argues the couple had been informally married since August 4, 1988, which is the marriage date given in the informal marriage declaration. Appellant contends that because this was a valid common law marriage, the trial court should not have compelled Martha to testify against appellant at the punishment phase of trial regarding certain events which occurred in 1989 and early 1990, in violation of her testimonial privilege under Rule 504 of the Texas Rules of Criminal Evidence. ³

Under Rule 504 the spouse of the accused has a privilege not to be called as a witness for the State. TEX.R.CRIM. EVID. 504(2)(a). This privilege does not extend to matters occurring prior to the marriage. TEX.R.CRIM. EVID. 504(2)(b). Appellant and Martha were never ceremonially married; therefore, appellant had to prove that a common law marriage existed at the time of the events to which Martha testified. See Welch v. State, 908 S.W.2d 258, 264-265 (Tex.App.--El Paso 1995, no pet.); Anderson v. State, 880 S.W.2d 35, 37 (Tex.App.--Tyler 1994, pet. ref'd)(defendant has burden of proving that witness is common law spouse for purpose of excluding testimony under marital privilege).

Section 1.91 of the Texas Family Code provides in part that:

(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of [the] marriage has been executed under Section 1.92 of this code; or

(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

TEX. FAM.CODE ANN. § 1.91(a)(Vernon 1993)(emphasis added). Section 1.92, Declaration and Registration, requires that the written declaration referred to in subsection (a)(1) above, contain the following oath:

I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.

A properly recorded declaration of informal marriage constitutes prima facie proof of the informal marriage. TEX. FAM.CODE § 1.94(d)(Vernon 1993); Russell v. Russell, 865 S.W.2d 929, 931 (Tex.1993). Thus, the trial court may find the common law marriage proven based upon the declaration alone, but evidence may be offered rebutting the existence of the marriage as sworn to or stated in the declaration. In other words, the trial court is not bound to find a marriage as stated in the declaration when there is evidence to the contrary. In reviewing the trial court's ruling in this regard, as with other questions concerning the admissibility of evidence, we apply an abuse of discretion standard. See TEX.R.CRIM. EVID. 104(a); McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App.1993).

The trial court admitted into evidence, at appellant's request, a written declaration of informal marriage that complied on its face with the requirements in section 1.92. The declaration was executed on January 11, 1990, and stated in part as follows:

I solemnly swear (or affirm) that we, the undersigned, are married to each other by virtue of the following facts; on or about August 4, 1988, we agreed to be married, and after that date we lived together as husband and wife and in this State we represented to others that we were married....

To challenge appellant's prima facie showing of common law marriage based upon the declaration, the State offered Martha's testimony in which she indicated that she and appellant did not live together during the relevant time period, and that they were "common law married" on January 11, 1990, not August 4, 1988:

The State: Before you moved into the trailer that ended up getting burned down, before that, did you ever live with [appellant]?

The Witness: No, sir.

The State: So really you never have lived with [appellant], have you?

The Witness: Well, we have been separated due to the prison time and everything else. That is true. We have been separate more than we have ever been together, but when we were together, we really loved each other.

The State: You got married before he went to prison for arson, right?

The Witness: I got married on the day that he got his time and was definitely going to be sent away, so I would know I had papers on him anyway.

The State: And after the trailer burned, you lived where you live now, with the people you live with now, didn't you?

The Witness: After the trailer burned, yes, sir.

The State: And you have lived there ever since the trailer burned, haven't you?

The Witness: Yes, sir.

The State: And except for staying a few nights with you and that sort of thing, your husband never has resided there with you, has he?

The Witness: No, not actually, you know.

The State: When he got out of prison for arson, he didn't move in with you, did he?

The Witness: When he got out of arson [sic]? He got him an apartment and I cannot live with him because I had my two dogs and they don't allow pets or either you have to be a rich person to be able to pay the deposit to be able to have the pets.

The State: And after he got out of the Federal prison, he didn't live with you then either, did he?

The Witness: No, sir. It is generally nearly always been the same reason, due to me having my pets and different, you know, reasons that, you know, had conflict with us being able to be together.

(emphasis added). On cross-examination by the defense, Martha stated that she had lived with a...