Rumbaugh v. State, 59940

• Decision Date: 20 June 1979
• Docket Number: No. 59940,59940
• Parties: Charles RUMBAUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 414

589 S.W.2d 414

Charles RUMBAUGH, Appellant, v. The STATE of Texas, Appellee.

No. 59940.

Court of Criminal Appeals of Texas, En Banc.

June 20, 1979.

Rehearing Denied Nov. 28, 1979.

James D. Durham, Jr., Amarillo, court appointed on appeal, for appellant.

Thomas A. Curtis, Dist. Atty., John Byron Reese and Steve Schiwetz, Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

After he had been arrested on a charge of capital murder, the appellant escaped from the Potter County jail. He and two other inmates who escaped were arrested for a traffic violation in Scurry County. As they were being taken into the Scurry County Courthouse, the three arrestees assaulted the arresting officer and took his gun, but they were recaptured immediately. After they were taken before a magistrate (see Article 15.17, V.A.C.C.P.), they were confined in the Scurry County sheriff's office. The arrestees did not know that their conversations were being recorded on tape as they talked among themselves and with other persons in the office.

At the punishment phase of the appellant's trial for capital murder, and over the appellant's objection, the trial court received in evidence portions of the long tape recording. These portions included the appellant's statement to the arresting officer, "If I'd a-had a gun I sure as hell would have shot you, man"; his statement to the arresting officer explaining his plan to "jump" the officer with a knife; his statement to his companion, complaining about not being given the officer's gun so that he could have staged a "showdown"; his statement to officers that he doubted that he would ever sit in the electric chair, and his description of the capital murder. ¹ These damaging and inculpatory statements were offered on the issues stated in Article 37.071(b), V.A.C.C.P. After hearing these statements and other evidence, the jury answered the issues "yes," which fixed the punishment at death.

In his twelfth ground of error, the appellant contends that the court erred in admitting into evidence one of the statements on the tape ("If I'd a-had a gun I sure as hell would have shot you, man."), because it was not admissible under Article 38.22, V.A.C.C.P. The appellant does not explain why he mentions only that statement, for his objection applies with equal (or greater) force to the later statements on the tape. At trial the appellant objected on the same ground to all the statements. The error complained of embraces all the statements.

The trial court overruled the objection on the ground that he was bound to reject only evidence that was "in violation of" the constitutions of the United States or Texas. Similarly, the State argues on appeal that the tape, although inadmissible at the guilt stage of the trial, was admissible at the punishment stage "because no constitutional rights were violated." The ruling and the argument are based on the two sentences of Article 37.071(a), V.A.C.C.P. that are emphasized:

"Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death."

Although the first of these emphasized sentences gives the trial court wide discretion in determining the relevance of facts sought to be proved in the proceeding, the sentences do not abolish the rules of evidence. Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).

That the Legislature deliberately chose not to abolish the exclusionary rules of evidence is shown by considering the legislative history of Article 37.071(a). The revision of Texas's law on capital crimes began with House Bill 200 in the 63rd Legislature. Not much of that bill (and nothing relevant to this case) survived. ² After the bill passed the House, the Jurisprudence Committee of the Senate recommended an amended version which substituted an entirely different bill. ³ The procedural aspects of this bill were virtually identical ⁴ to those of the Florida Capital Punishment Act, ⁵ which had been enacted only a few months before. ⁶ The pertinent portion of the Senate bill ⁷ read:

"Article 37.071. PROCEDURE IN CAPITAL CASE.

(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury, unless waived, as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in Subsections (e) and (f) of this section. Any evidence that the court deems to have probative value may be admitted, regardless of its admissibility under the exclusionary rules of evidence, but the defendant shall be accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death. (Emphasis supplied)"

It will be noted that in this bill, between the two sentences on which the State relies, there was another sentence which would have abolished the exclusionary rules of evidence in the punishment phase of a capital trial. After the bill passed the Senate, the House refused to concur in the amendments, and the bill was referred to a conference committee. ⁸ In the process of resolving the differences between the bills, the conference committee made many modifications. ⁹ The conference committee's bill was approved by overwhelming majorities of both houses and was signed into law, ¹⁰ so the actions of the conference committee express the Legislature's intent.

The conference committee made several changes in Article 37.071(a). First, it removed references to waiver of jury trial, because it decided that no waiver would be permitted. ¹¹ Second, it removed references to aggravating and mitigating circumstances, because it substantially rejected that concept. ¹² Third, and most significantly for our purposes, it deleted the sentence that would have abolished the exclusionary rules of evidence in the punishment phase of a capital trial. This can only mean that the Legislature deliberately chose not to abolish those rules. The legislative intent is clear.

Additionally, an examination of the context in which arose the two sentences ¹³ on which the State relies will show that these sentences were not intended to abolish all but the constitutionally mandated rules of evidence.

The first of these sentences was the result of a disagreement in Florida over the scope of the punishment hearing. The governor of that state proposed a bill which would have limited the evidence to matters that were relevant to the enumerated aggravating and mitigating circumstances. The Florida Legislature amended the bill to expand the scope of relevance to any evidence that was relevant to sentencing, in addition to the enumerated circumstances. ¹⁴ Thus, it may be seen that the effect of this sentence is to expand the trial court's discretion as to relevance, but it does not alter other aspects of the law of evidence. We so held in Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).

The other sentence on which the State relies is the one that deals with "evidence secured in violation of the Constitution." The Florida Legislature added that sentence in an evident abundance of caution, so that no one could be misled by the preceding sentence (which abolished "the exclusionary rules of evidence") into thinking that the exclusionary rule of the Fourth Amendment had been affected. ¹⁵ Most (if not all) of the significance of this sentence disappeared when the Texas Legislature omitted the sentence that abolished the exclusionary rules of evidence. Thus it may be seen that this sentence was intended only as a caution, not as an abolition of all the nonconstitutional rules of evidence.

Neither of these sentences on which the State relies purports on its face to change any rule of evidence other than the scope of relevance. The history of their origins demonstrates that there was no intent that they make any additional changes in the law of evidence. When we consider the additional fact of the Legislature's deliberate omission of the sentence that would have abolished the exclusionary rules of evidence, we are compelled to hold that the exclusionary rules of evidence do apply at the punishment phase of a capital trial.

This holding is consonant with our earlier holdings that the rule of evidence that excludes hearsay is applicable in the punishment phase of a capital trial. See Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979); Cortez v. State, 571 S.W.2d 308 (Tex.Cr.App.1978).

There is no conflict between today's holding and our earlier holdings that evidence of unadjudicated, extraneous offenses is admissible at the punishment phase of a capital trial. See...