Ludwig v. State

• Decision Date: 19 June 1996
• Docket Number: No. 561-94,561-94
• Citation: 931 S.W.2d 239
• Parties: Ronald David LUDWIG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 239

931 S.W.2d 239

Ronald David LUDWIG, Appellant, v. The STATE of Texas, Appellee.

No. 561-94.

Court of Criminal Appeals of Texas En Banc.

June 19, 1996.

Steven R. Rosen, Houston, for appellant.

David E. Sloan, Asst. Dist. Atty., Waxahachie, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

A jury convicted appellant of capital murder, pursuant to V.T. C.A. Penal Code, § 19.03. When the jury failed to answer affirmatively the two special issues submitted at the punishment hearing, the trial court assessed punishment at life. Appellant's conviction was affirmed by the Tenth Court of Appeals. Ludwig v. State, 872 S.W.2d 771 (Tex.App.--Waco 1994). On appeal appellant argued that the trial court erred in allowing his wife to testify to certain conversations between her and appellant, over the objection that those conversations were privileged communications under Tex.R.Cr.Evid., Rule 504(1). The court of appeals held that the trial court did not err because the communications were not privileged; since appellant was charged with an offense against a minor child, the exception in Tex.R.Cr.Evid., Rule 504(1)(d)(2) was applicable. ¹ We granted appellant's petition for discretionary review to examine this holding. See Tex.R.App.Pro., Rule 200(c)(2) & (4).

I.

Appellant was charged with the murders of Joseph and Matthew Trojacek, appellant's brother-in-law and nephew. Matthew Trojacek was five years old at the time he was murdered. Theresa Trojacek, appellant's wife, was called as a witness by the prosecution and testified to conversations she had with appellant. ² Appellant argued that the trial court erred in allowing his wife to testify to confidential marital communications because they were privileged under Tex.R.Cr.Evid., Rule 504(1). ³ The exception to this privilege found in Rule 504(1)(d)(2), he argued, applied only for offenses committed against the minor children of him or his spouse. ⁴ Matthew Trojacek was not the child of either appellant or Theresa Trojacek. For its part, the State argued that the exception in Rule 504(1)(d)(2) applied to any minor child, and since appellant was charged with a crime against the person of a minor child the exception was applicable. Both the State and appellant primarily based their arguments on the "plain language" of Rule 504.

Noting that there were no cases on point and that the commentators on the rules of evidence were in disagreement on this issue, the court of appeals reasoned that with the increased governmental concern over sexual and violent assaults against children, the exception in Rule 504(1)(d)(2) was intended to cover any minor child. The court of appeals wrote: "We understand the exception contained in Rule 504(1)(d)(2) to expand the number of cases involving crimes against children in which an accused will not be permitted to invoke a marital privilege and prevent the jury from hearing otherwise relevant testimony." Ludwig v. State, 872 S.W.2d at 775. "Thus, ... we hold that the State was entitled to the benefit of the exception stated in Rule 504(1)(d)(2) because Ludwig was being tried for an offense against Matthew Trojacek, a minor child." Id.

II.

A. Plain Language

In Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991), we held that in construing statutes, we begin with the literal text of the statute, without reference to any extratextual factors, as long as the plain language, read in light of established rules of construction, is unambiguous. This strict plain-text method of statutory construction was essentially based on a constitutional separation of powers rationale. ⁵ After all, the plain language of a statute is the best evidence we have of the legislative intent. Id., at 785. Here, of course, we are called upon to interpret a rule of evidence, enacted not by the Legislature but rather by this Court. In this context, the separation of powers rationale of Boykin does not apply and there is nothing to prevent us from considering extratextual factors in determining intent, regardless of the plain language of the rule. ⁶ Even so, it is best to begin our analysis with the language of Rule 504(1)(d)(2) itself.

The question is what the rule means by "crime against the person of any minor child or any member of the household of either spouse...." It is appellant's contention that "any minor child" is modified by the prepositional phrase "of either spouse." Accordingly, for the exception to apply, the minor child who is the victim of the crime must be the offspring of one of the spouses. The State argues that "any minor child" stands alone, without a modifier, and that it need only show an offense against a child to invoke the exception. Words and phrases are to be read in context and construed according to the rules of grammar and common usage. Cf. 82 C.J.S. Statutes § 340 (1953); V.T.C.A. Government Code, § 311.011(a); McVickers v. State, 838 S.W.2d 651, 655 (Tex.App.--Corpus Christi 1992), aff'd. on other grounds, 874 S.W.2d 662 (Tex.Cr.App.1993) (Code Construction Act applies to Texas Rules of Criminal Evidence). Unfortunately, this obvious maxim proves unhelpful in this case.

"Generally, the presence of a comma separating a modifying clause in a statute from the clause immediately preceding is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one." 82 C.J.S. Statutes § 334 (1953), at 672. Consistent with this convention of punctuation (and presuming that it applies equally to "phrases" as to "clauses"), ⁷ if appellant's construction of Rule 504(1)(d)(2) is correct, we would expect it to be punctuated as follows:

"crime against the person of any minor child or any member of the household, of either spouse";

or, better yet "crime against the person of any minor child, or any member of the household, of either spouse". ⁸

That the exception is not punctuated in either of these two ways militates against appellant's construction. On the other hand, there is another punctuation convention the absence of which in Rule 504(1)(d)(2) tends to cut in his favor. That is, that "[g]enerally, a comma should precede a conjunction connecting two coordinate clauses or phrases in a statute in order to prevent the following qualifying phrases from modifying the clause preceding the conjunction." 82 C.J.S., supra. According to this convention, if the State's construction of the statute is the one intended, we would expect to find the exception punctuated this way:

"crime against the person of any minor child, or any member of the household of either spouse".

The problem, of course, is that the exception is not punctuated in any of these ways. In fact, it is not punctuated at all. Absent a comma or commas, Rule 504(1)(d)(2) is ambiguous; we cannot say with any assurance whether "of either spouse" does or does not modify "any minor child." We simply cannot tell which of the two competing constructions, appellant's or the State's, is the intended one. ⁹

B. Extratextual Sources

We are compelled, then, to resort to extratextual sources to determine the intent behind the rule. A court may consider the purpose behind the rule as an aid to construction. Cf. 67 Tex.Jur.3d Statutes § 93 (1994); V.T.C.A. Government Code, § 311.023(1). Unlike other rules of evidence, privileges are not designed primarily to exclude unreliable evidence. In fact, privileges expressly subordinate the goal of truth-seeking to other societal interests, and the societal interest to be protected by the marital communication privilege--which was one of the first privileges to be recognized--is the institution of marriage. ¹⁰ See Trammel v. United States, 445 U.S. 40, 45, 100 S.Ct. 906, 909, 63 L.Ed.2d 186, 190 (1980). Marriage, which is viewed by many as the traditional core of the family, is generally embraced in our society as an institution deserving support. ¹¹ The marital communications privilege is based on the belief in the "sanctity of privacy in marriage, the desirability of free communication between spouses, and the concept that the preservation and maintenance of marital relations requires that husband and wife be permitted to talk confidentially without fear of having their communications disclosed to others, even in court." McFall & Little, Privileges Under Texas Law: A Dying Breed?, 31 S.Tex.L.Rev. 471, 478 (1990). The purpose behind the privilege would seem to counsel that any exception thereto be narrowly construed. Absent contrary evidence of the rulemakers' intent, we would therefore be inclined to resolve the ambiguity in Rule 504(1)(d)(2) by holding the exception was meant to cover only the minor child of either spouse.

As the court of appeals recognized, at least one treatise on the Rules of Criminal Evidence has noted the ambiguity of the exception to the communications privilege in Rule 504(1)(d)(2). See Ludwig v. State, supra at 774, quoting Wendorf, Schleuter & Barton, Texas Rules of Evidence Manual (3rd ed.1991), at V-59-60. The court of appeals, however, opted for the perspective of another set of commentators. Professors Goode, Wellborn and Sharlot have noted that language making it abundantly clear that the exception to the marital communications privilege applies only to the minor child "of either spouse" was left out of the draft of what is now Rule 504(1)(d)(2) that was ultimately recommended by the Subcommittee on Criminal Matters of the Senate-House Select Committee on the Judiciary to the Select Committee on Rules of Evidence in Criminal Cases (hereinafter "Subcommittee") in 1985. From this they conclude that the privilege was not meant to cover crimes against children, period. See 1 Goode, Wellborn & Sharlot, Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 504.8 (2d ed.1993), at 391 & n. 10. We are constrained to agree.

The present writer was...