Davis v. State, 71513
| Decision Date | 07 January 1998 |
| Docket Number | No. 71513,71513 |
| Citation | 961 S.W.2d 156 |
| Parties | Brian Edward DAVIS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder and sentenced to death. See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994); TEX.CRIM. PROC.CODE ANN. art. 37.071, § 2 (Vernon Supp.1997). Appeal to this Court is automatic. TEX.CRIM. PROC.CODE ANN. art. 37.071, § 2(h) (Vernon Supp.1997). Appellant raises thirty points of error. We will affirm.
In point of error twenty-two appellant contends that the trial court erred in denying his request to admit his former testimony under Texas Rule of Criminal Evidence 804(b). Appellant testified at a pre-trial suppression hearing. At trial he sought to introduce the transcript of his former testimony. He argued that, under Rule 804, if a person has testified in a proceeding concerning a material issue, and both sides have had an opportunity to cross-examine the witness, and the person invokes a privilege and refuses to testify, the prior testimony should be admitted at trial. Appellant did invoke his Fifth Amendment right not to testify thus becoming, according to him, unavailable within the meaning of the rule. The trial court refused to admit the transcript, saying, "If that rule applies to a defendant, the Appellate Court is going to have to say so." We decline the invitation.
Rule 804(a) provides in part that a declarant is not unavailable if his exemption from testifying is procured by the party offering the declarant's testimony:
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
TEX.R.CRIM. EVID. 804(a). In the present case, appellant was exempt from testifying because he invoked his privilege against self-incrimination. By invoking his Fifth Amendment privilege, appellant procured this exemption for the purpose of preventing himself from testifying as a witness. And appellant was the proponent of his prior testimony. Therefore, under the plain language of the rule, appellant was not unavailable.
Two courts of appeals have come to the conclusion that a defendant who invokes his Fifth Amendment privilege does not become unavailable under Rule 804 when he seeks to offer his own prior testimony. See Castro v. State, 914 S.W.2d 159 (Tex.App.--San Antonio 1995, pet. ref'd); Dennis v. State, 961 S.W.2d 245 (Tex.App.--Houston [1st Dist.] 1997, no pet.). Both courts of appeals' opinions relied expressly upon the provision of Rule 804(a) quoted above. Castro, 914 S.W.2d at 163; Dennis, at 245. Likewise, the Fifth Circuit, in reaching the same conclusion, relied upon a similarly worded provision in Federal Rule of Evidence 804(a). United States v. Kimball, 15 F.3d 54, 55-56 & 56 n. 5 (5th Cir.1994); see also United States v. Peterson, 100 F.3d 7, 13-14 (2nd Cir.1996) ().
The cases cited by appellant as controlling authority are easily distinguished. In Bryan, the defendant testified at his first trial but invoked his Fifth Amendment privilege at his second trial. Bryan v. State, 837 S.W.2d 637, 639 (Tex.Crim.App.1992). At the defendant's second trial, the State offered the defendant's testimony from the first trial. Id. The exception to unavailability found in Rule 804(a) did not apply because the State was the proponent of the evidence, and the State did not procure the defendant's invocation of his Fifth Amendment privilege. 1 Rodela and Davis involved the testimony of persons other than the defendant. Rodela v. State, 829 S.W.2d 845, 849 (Tex.App.--Houston [1st Dist.] 1992, no pet.); Davis v. State, 773 S.W.2d 592, 593 (Tex.App.--Eastland 1989, pet. ref'd). 2 Hence, the exception to unavailability did not apply.
Because appellant was not "unavailable" within the meaning of Rule 804, the trial court did not err in refusing to admit the transcript of appellant's prior testimony. We overrule point of error twenty-two.
We affirm the judgment of the trial court.
The majority errs in holding appellant was not unavailable within the meaning of Tex.R.Crim. Evid. 804. Ante, at 157. However, for the reasons stated below, the twenty-second point of error should be overruled.
Appellant was charged with attempted murder and incarcerated in an administrative segregation unit of the Harris County jail. His wife was also implicated in the crime and incarcerated in a separate facility. During this incarceration, detectives began developing evidence linking appellant and his wife to a separate and unrelated offense, the instant capital murder. Appellant and his wife communicated by telephone during their confinement. During one of their conversations, appellant learned the detectives had visited appellant's wife to obtain evidence relating to the instant offense. Appellant then requested and received a meeting with the detectives. At this meeting, appellant gave a videotaped confession to the instant offense.
Prior to trial, appellant moved to suppress the confession. Appellant asserted he confessed based on the assumption that in exchange for the confession: 1) his wife would receive immunity; 2) he would be transferred out of administrative segregation; 3) he would receive a contact visit with his wife; and, 4) his wife would receive a life sentence instead of the death penalty. Because these demands were not met, appellant contended the confession was involuntary. The trial judge denied the motion to suppress the confession. At trial, the confession was admitted into evidence and published to the jury.
After the State introduced the confession into evidence, appellant sought to admit his testimony from the pre-trial suppression hearing to establish his confession was involuntary. Outside the jury's presence, appellant exercised his Fifth Amendment privilege not to testify. Appellant asserted the invocation of his Fifth Amendment privilege rendered him "unavailable" and, therefore, his pre-trial testimony was admissible as "former testimony" under Tex.R.Crim. Evid. 804(b)(1). The trial judge denied appellant's request and his testimony from the pre-trial suppression hearing was not admitted at trial. The twenty-second point of error contends the trial court erred in denying appellant's request to admit his pre-trial testimony.
Rule 804 provides in part:
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or
(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination....
In order for former testimony to be admissible a three prong test must be satisfied. First, the declarant must be unavailable to testify at the latter proceeding. Second, the latter proceeding must include the same charges, parties and issues as the former proceeding. Third, the party against whom the testimony is being offered must have had an opportunity and similar motive at the former proceeding to develop the former testimony on direct, cross or redirect examination. Bryan v. State, 837 S.W.2d 637 (Tex.Cr.App.1992).
Unavailability as a witness includes situations in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so. Tex.R.Crim. Evid. 804(a)(1). In Bryan, the defendant testified at his first trial but elected not to testify at his second trial. At the second trial, the judge allowed the court reporter to read portions of the defendant's direct and cross-examination testimony from the first trial. This Court held when the defendant invoked his Fifth Amendment privilege against self-incrimination during the second trial, he became "unavailable" for purposes of Rule 804(a)(1). Id., 837 S.W.2d at 644. Similarly in Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992), a witness testified before the grand jury but, at trial, invoked her Fifth Amendment privilege...
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