Ex parte Zerschausky, 40133

• Decision Date: 07 June 1967
• Docket Number: No. 40133,40133
• Citation: 417 S.W.2d 279
• Parties: Ex parte Stephen D. ZERSCHAUSKY.
• Court: Texas Court of Criminal Appeals

Page 279

417 S.W.2d 279

Ex parte Stephen D. ZERSCHAUSKY.

No. 40133.

Court of Criminal Appeals of Texas.

June 7, 1967.

Rehearing Denied July 19, 1967.

Fred A. Semaan, Oscar C. Gonzales, San Antonio, for appellant.

James A. Barlow, Dist. Atty., San Antonio, Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking the validity of petitioner's conviction for murder with punishment assessed at 30 years.

The petition was presented to Hon. Archie S. Brown, Judge of the 144th District Court of Bexar County where the conviction was had.

Judge Brown ordered a hearing on the question of whether the writ should issue, and after the hearing granted the writ returnable before this court, as provided in Art. 11.07 Vernon's Ann.C.C.P.

Trial of the case which resulted in the conviction attacked began April 1, 1963, which was prior to the repeal of Art. 711 C.C.P. (by the 1965 Code of Criminal Procedure) under which persons charged as accessories could not be introduced as witnesses for the principal. (Art. 82 P.C. to the same effect is repealed in the 1967 amendment to the 1965 Code but such amendment is not yet in effect.)

The grounds upon which the conviction under which petitioner is confined in the Texas Department of Corrections is attacked is that petitioner, during his trial, was denied the benefit of the testimony of three eye witnesses to the killing who were under indictment as accessories and thereby disqualifed as witnesses in his behalf under Articles 81 and 82 of the Penal Code and Art. 711 of the Code of Criminal Procedure in effect at the time of his trial, which Articles he contends are unconstitutional and in direct donflict with the Sixth Amendment of the Constitution of the United States.

A careful review of the record relating to the trial at which petitioner was convicted, shown by evidence offered by petitioner at the habeas corpus hearing to contain all of the testimony with nothing omitted or added, reflects that no ruling by the trial judge relating to the witnesses under indictment as accessories to petitioner was sought or made, and petitioner relies for his claimed denial of due process on (1) the unconstitutionality of the statutes above mentioned; (2) the refusal of the district attorney of his request that he waive any objection that the law gave him to the accessory witnesses testifying and permit them to be put on the stand by the defense and to testify, and (3) the ground that he was deprived of the testimony of such witnesses by reason of the fact that the state, by and through its Criminal District Attorney, was responsible for having such witnesses indicted as accessories.

In Washington v. State, Tex.Cr.App., 400 S.W.2d 756, the court sustained the objection of the state to the calling of Fuller, a co-principal who had been convicted of the murder for which Washington was on trial. The question decided by this court was whether The court's ruling, predicated upon Art. 711, C.C.P. then in effect, violated Washington's rights under the Sixth and Fourteenth Amendments.

In Brown v. State, Tex.Cr.App., 401 S.W.2d 251, as well as in Washington, supra, we held that Art. 711 C.C.P. (1925) and Art. 82 P.C. which provides that parties charged As principals cannot be introduced as witnesses for one another were constitutional. As in Washington, supra, The court's refusal to allow the witness who had been convicted as a principal in the murder to testify in the defendant's behalf was relied upon as showing denial of due process.

This court has recognized the inherent power of the trial court to protect the rights of the defendant guaranteed by Art. 1, Sec. 10, of the Constitution of Texas, Vernon's Ann.St. and has held that the Legislature is without authority to deprive an accused of his right to have compulsory process for obtaining witnesses in his favor. Bludworth v. State, 168 Tex.Cr.R. 549, 330 S.W.2d 436, and cases cited.

We held in Stein v. State, 172 Tex.Cr.R. 248, 355 S.W.2d 723, that one under indictment as an accessory was competent to testify, counsel for the state having withdrawn his objection, and pointed out that Articles 711 C.C.P. and 82 P.C. must yield to Art. 81 P.C. which provides that unless the has escaped the principal shall be tried first.

In Sewall v. State, 67 Tex.Cr.R. 105, 148 S.W. 569, decided in 1912, the refusal of the trial court to grant a severance, the other parties being charged as accessories, was held not to be error but it was suggested:

'if the court should ascertain the fact to be that the witnesses were indicted to prevent them from testifying, the court should see that no injury is done the appellant for this reason, and use such authority as is confided to the trial court to see that no undue advantage of this sort may be taken.'

There is no showing in the record that the trial judge was afforded the opportunity at the trial to allow the witnesses under indictment as accessories to be introduced as witnesses for petitioner, notwithstanding the provisions of Arts, 711 C.C.P. and 82 P.C. relating to accessories as witnesses, and without regard to whether or not the district attorney objected or whether or not he 'was responsible' for having such witnesses indicted as accessories.

The trial judge had inherent power to protect the rights of petitioner under the Due Process Clause of the Constitution of the United States and under Art. 1, Section 10, of the Constitution of Texas.

In addition to the authorities above mentioned, the rule applied by the Circuit Court of Appeals for the 5th District in Bonner v. Beto, 373 F.2d 301, is applicable in the courts of this state as well as in the Federal Courts.

'The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), '(T)he adoption of the rule of her choice cannot foreclose inquiry as to whether in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law."

We hold that petitioner is not entitled to relief on the ground that Article 711, V.A.C.C.P. and Articles 81 and 82 of the Penal Code are unconstitutional; that Article 711, V.A.C.C.P. and Art. 82, P.C. must yield to Art 81, P.C. which provides that unless the principal has escaped, he shall be tried before the accessories, and that all of such statutes must yield to the constitutional right of the defendant in a given case to compulsory process for witnesses and to have their testimony.

Petitioner is not complaining of any ruling of the trial court at his trial regarding his right to call witnesses. His complaint is that the District Attorney who was called by the defense as a witness declined to waive objection to witnesses under indictment as accessories to petitioner being competent to testify.

In the absence of any ruling of the trial court denying petitioner the right to call the witnesses under indictment as accessories and have them testify for him, we overrule the contention that petitioner was denied due process.

The relief prayed for is denied.

DISSENTING OPINION

MORRISON, Judge.

This case was assigned to me originally, and I prepared the following opinion in which my brother ONION, J., joined. We now adopt such opinion in its entirety as our dissent in order to fully reflect our views.

'On December 28, 1966, the Honorable Archie S. Brown, Judge of the 144th District Court of Bexar County, held a hearing and certified the record thereof to this Court for appropriate action under Article 11.07, V.A.C.C.P.

On April 1, 1963, relator was tried in said 144th District Court under an indictment charging him with murder which resulted in a verdict of guilty with punishment assessed at 30 years. No appeal from this conviction was perfected. The thrust of relator's contention is that he was deprived of his liberty without due process of law under the Fourteenth Amendment to the United States constitution in that he was deprived of the testimony of the three eye witnesses to the homicide because they had been separately indicted as his accessories in such homicide.

In order to establish the factual support of such contention, appellant's counsel testified at the habeas corpus hearing before the same judge who had conducted the original trial:

'MR. SEMAAN: All right, sir. Shortly before the trial of the case, which began on April 3, I think, 1963, I had a short conversation with Judge Brown, who was the Judge that tried the Case. I discussed the case of Stein v. State--and, offhand, I don't remember the citation but I can furnish it into the record--which holds that an accessory can testify if the prosecution will waive their objection. And I told Judge Brown that I wasn't sure whether or not he was familiar with the ruling in the case, but that I wanted him to be aware of it and that I intended to ask the District Attorney to waive his objection and let the accessories testify. If he agreed, I apprised Judge Brown of the fact that I intended to call these witnesses. If the District Attorney didn't waive his objection, then I couldn't call them. Judge Brown agreed with me, that that was more or less the law and to wait and see what the District Attorney's attitude was during the trial.

Now during the trial, I did ask the District Attorney if he would waive his objection and let the accessories testify; and he refused.

Q. (By Mr. Leon:) Did you have the witnesses ready, willing and available to testify at that time?

A. They were out in the hall ready to take the stand the minute they were called.'

The trial record clearly shows that relator's counsel asked the ...