Willard v. State
| Decision Date | 19 November 1986 |
| Docket Number | No. 099-85,099-85 |
| Citation | 719 S.W.2d 595 |
| Parties | Marvin E. WILLARD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Kenneth E. Houp, Jr., on appeal only, Austin, for appellant.
Travis B. Bryan, III, Sp. Prosecutor, Bryan, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of murder. The jury assessed his punishment at 30 years' imprisonment and at a fine of $10,000.00.
On appeal the appellant, in one of his points of error, contended the trial court erred, over his objection, in allowing his wife to testify for the State. Perceiving a conflict between Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978), and Young v. State, 603 S.W.2d 851 (Tex.Cr.App.1980), the Court of Appeals felt the conflict between the cases were for the Court of Criminal Appeals, but concluded that nothing in Young would compel the court to discard the "standard" in Garcia. The court held that the wife of the appellant was a competent witness for the State. The conviction was affirmed. Willard v. State, 682 S.W.2d 686 (Tex.App.--Houston [1st Dist.] 1984, reh.den.).
We granted appellant's petition for discretionary review to determine the correctness of the Court of Appeals' opinion as to the competency of the wife as a witness.
It was undisputed that Jean Willard was appellant's wife at the time of the alleged offense and at the time of trial over a year later. Although a divorce proceeding had been instituted by Jean Willard prior to December 11, 1982 (date of alleged offense), it was still pending on December 12, 1983, the day the trial began. The appellant was charged with the murder of Lynn Pinyozy, 1 Jean Willard's adult, 37-year-old daughter by a previous marriage.
The record shows that on December 11, 1982, Jean Willard and her daughter, Lynn Pinyozy, went to appellant's farm home to remove some of Mrs. Willard's belongings from the residence. 2 Jean Willard testified that after arriving at the residence, appellant took a teakettle away from her, hit her and broke her glasses and hit her and Lynn with his fists, and they retreated to their vehicle in the yard. Upon appellant's pleas, they returned to the house, but appellant again attacked them and then got a gun and shot Lynn, who at the time was in the yard near her vehicle. Appellant then forced her (Jean Willard) to accompany him as he left the premises, telling her that he was going to kill her if she didn't go to Mexico with him. They got as far as New Braunfels, where they were joined by one of appellant's sons, and came to Austin, where she was released later that night.
The defense was self-defense, and there was some evidence by the State that appellant's relatives altered the crime scene to make it appear that appellant had acted in self-defense.
Jean Willard's testimony was given over objection that she was his wife and disqualified as a witness for the State. See Article 38.11, V.A.C.C.P. We review some of the forerunners of said statute.
Article 794 , C.C.P. (1911), provided:
"Neither husband nor wife shall, in any case, testify as to communications made one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial."
Article 795 , C.C.P. (1911), provided:
"The husband and wife may, in all criminal actions, be witnesses for each other, but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other."
These provisions from the 1911 Code of Criminal Procedure followed almost word for word the provisions of the earlier Codes of Criminal Procedure. Cf. Clark, Criminal Laws of Texas (1881), p. 550.
As can be seen, one of the above statutes created a privilege, and the other created a disqualification. Article 794, supra, conferred on the spouse the privilege of excluding communications between the spouses. This was a mere privilege that had to be claimed to be effective. Article 795, supra, on the other hand, established an absolute disqualification, which did not have to be claimed by the defendant to be operative. The statute (Art. 795) simply excluded the adverse testimony of a defendant's spouse.
In the 1925 Code of Criminal Procedure the two former statutes were melded into one statute. See Article 714, V.A.C.C.P. (1925). There was no change other than the phrase "while the marriage relation subsisted " found in said Article 794 was changed to "while the marriage relation existed " in the new statute, Article 714, supra. As was true under the former statutes, the privilege could be waived, the disqualification could not.
Under the 1925 Code as well as the former statutes, it was consistently held that the husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other. Branch's Ann.P.C. 2d ed., Vol. 1, § 171, p. 176. See also Johnson v. State, 28 Tex.App. 17, 11 S.W. 667 (1889); Miller v. State, 37 Tex.Cr.R. 575, 40 S.W. 313 (1897); Vickers v. State, 92 Tex.Cr.R. 182, 242 S.W. 1032 (1922); Hilton v. State, 149 Tex.Cr.R. 22, 191 S.W.2d 875 (1945); Morris v. State, 150 Tex.Cr.R. 58, 198 S.W.2d 901 (1946); Tex.Jur.3rd, Vol. 24, Crim. Law, § 3206, p. 561.
It has been held that a wife cannot be used as a witness against her husband, even if no objection is urged at the time, Johnson v. State, 148 S.W. 378 (Tex.Cr.App.1912), for the disqualification cannot be waived. Eads v. State, 170 S.W. 145 (Tex.Cr.App.1914). Even with his consent, the wife is an incompetent witness against the husband. Rogers v. State, 368 S.W.2d 772 (Tex.Cr.App.1963). If the State uses the wife of the accused as a witness against him on the trial of a case in which she is not a competent witness for the State, such action may require a reversal though objected to for the first time on appeal. Brock v. State, 44 Tex.Cr.R. 335, 71 S.W. 20 (1902); Moore v. State, 45 Tex.Cr.R. 234, 75 S.W. 497 (1903); Davis v. State, 45 Tex.Cr.R. 292, 77 S.W. 451 (1903); Spivey v. State, 45 Tex.Cr.R. 496, 77 S.W. 444 (1903); Yeiral v. State, 119 S.W. 848 (Tex.Cr.App.1909); Woodall v. State, 126 S.W. 591 (Tex.Cr.App. 1910); Eads v. State, supra.
In a fact situation much like that in the instant case it was held in Johnson v. State, 27 Tex.App. 135, 11 S.W. 34 (1889) that a wife was incompetent, in view of the statute, to testify against her husband for aggravated assault upon her daughter, the defendant's stepdaughter.
The early cases made clear that in light of the statutes the husband or wife was not a competent witness to testify for the State unless the prosecution be for an offense committed by one against the other. Johnson v. State, 11 S.W. 34, supra; Johnson v. State, 148 S.W. 328 (Tex.Cr.App.1912); Norwood v. State, 192 S.W. 248 (Tex.Cr.App.1917).
And in Baxter v. State, 34 Tex.Cr.R. 516, 31 S.W. 394 (1895), it was held the statutory prohibition against a husband or wife testifying against each other except in a criminal prosecution for "an offense committed by one against the other" meant an offense involving "some act of personal violence against the other." See also Overton v. State, 43 Tex. 616 (1875). Baxter involved a criminal prosecution for slander against the wife. Thus, it is clear that for the husband or wife to be a competent witness for the State the husband or wife had to be the named victim in the indictment or information and the offense had to involve some act of personal violence against the named victim.
In 1965 the Code of Criminal Procedure was again revised [Acts 1965, 59th Leg., Chapt. 722 (S.B. 107), effective January 1, 1966]. Article 714, V.A.C.C.P. (1925), became Article 38.11, V.A.C.C.P. (1965).
Said Article 38.11, supra, provided:
As the Special Commentary (Onion) to the 1965 version of Article 38.11 makes clear, the changes wrought were to make either spouse a competent witness against the other in any case involving (a) any assault or violence committed against any child of either under 16 years of age, (b) any case where either is charged with incest of a child of either, and (c) offenses under Chapter 3 of the Penal Code pertaining to wife and child desertion or willful failure or refusal to support his or her minor child.
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