Willard v. State, 01-84-0051-CR

• Decision Date: 11 December 1984
• Docket Number: No. 01-84-0051-CR,01-84-0051-CR
• Citation: 682 S.W.2d 686
• Parties: Marvin E. WILLARD, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 686

682 S.W.2d 686

Marvin E. WILLARD, Appellant, v. The STATE of Texas, Appellee.

No. 01-84-0051-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 11, 1984.

Rehearing Denied Dec. 31, 1984.

Kenneth E. Houp, Jr., Frank Maloney & Associates, Austin, for appellant.

Travis B. Bryan, III, Sp. Prosecutor for the State of Tex., Youngkin, Catlin, Bryan & Stacy, Bryan, for appellee.

Before BULLOCK, WARREN and JACK SMITH, JJ.

OPINION

BULLOCK, Justice.

This is an appeal from a jury conviction for the offense of murder and a jury sentence of thirty years' confinement and a $10,000.00 fine.

On December 10, 1982, Jean Willard, appellant's estranged wife, and the victim, who was Mrs. Willard's adult daughter, went together to appellant's house in order to remove some of Mrs. Willard's property. Mrs. Willard testified at trial that when they arrived at the house, appellant physically attacked both of them, striking them with his hands and feet and several heavy objects. She then testified that appellant left the house, took a .357 magnum pistol from among the many firearms he kept at his house and in his car, and shot and killed the victim. Mrs. Willard also testified that appellant then abducted her in an attempt to escape to Mexico, while his adult children stayed on the premises. It was the state's position that appellant's family then altered the crime scene to make it appear that appellant had killed the victim in self-defense.

Law enforcement officials found the victim's body by her truck with a sawed-off shotgun lying approximately 3 1/2 feet away. Mrs. Willard testified at trial that the shotgun had not been in the possession of the victim, that it was one of appellant's weapons, that he routinely kept it in the house, and that she and the victim had parked the truck in a different location when they arrived at the property. During a second search of the premises, made without a search warrant but with the permission of appellant's adult son, law enforcement officials found dried blood, identified as the victim's, in the spot where they had originally found the truck. The state contended from this evidence that appellant's family had moved the victim's body and the truck after the shooting as part of their scheme to bolster appellant's claim of self-defense.

The jury evidently disregarded appellant's claim of self-defense and convicted appellant.

Appellant presents four grounds of error on this appeal:

(1) That the trial court improperly allowed Mrs. Willard to testify before the jury;

(2) That the trial court improperly excused a prospective juror on its own motion;

(3) That the trial court improperly charged the jury regarding the murder; and

(4) That the trial court improperly admitted evidence obtained as the result of an illegal search of appellant's property.

Appellant contends that, because Mrs. Willard had not obtained a decree of divorce at the time of trial, she was by statute incompetent to testify against appellant. Appellant objected to the state's attempt to use Mrs. Willard as a witness against him, but the trial court allowed her testimony. The state contends that, given the facts of this case, Mrs. Willard was competent to testify at trial.

Neither husband or wife shall, in any case, testify as to communications made by one to the other while married. Neither husband or wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communications made while the marriage relation existed except in a case where one or the other is on trial 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 the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under sixteen (16) years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with bigamy, or in any case where either is charged with interference with child custody, or in any case where either is charged with non-support of his or her spouse's minor child [emphasis supplied].

Tex.Code Crim.Proc.Ann. art. 38.11 (Vernon 1981). Article 38.11 does create, as appellant suggests, a disqualification for a spouse when that spouse seeks to testify against his or her mate. However, we do not agree with appellant that this disqualification is absolute; quite the contrary, Article 38.11 expressly limits this disqualification. The question in the instant case is whether the situation demonstrates that appellant committed an offense involving an assault or violence against Mrs. Willard.

Appellant contends that the facts of this case do not establish such assault and urges us to rule that Mrs. Willard's testimony was incompetent on the basis of Young v. State, 603 S.W.2d 851 (Tex.Crim.App.1980). The focus of appellant's argument is that, since the state did not charge appellant with any kidnapping or attempted kidnapping of his wife, or with any physical assault upon her, it could not at trial present testimony by Mrs. Willard of the events surrounding the victim's killing. The state contends that the events surrounding this killing establish clearly that appellant committed a violent assault upon his wife, and that the circumstances of this homicide so clearly tie together that assault and the actual killing of the victim that, despite the absence of a formal charge regarding the assault against Mrs. Willard, she was competent to testify against appellant under the standard set forth in Garcia v. State, 573 S.W.2d 12, 15 (Tex.Crim.App.1978). We agree with the state.

The determination of this ground of error requires that we evaluate and attempt to reconcile, insofar as it is possible for us to do so, what appears to be an inconsistency in the interpretation of Article 38.11 created by these two cases. In Garcia v. State, the defendant appealed a conviction for indecency with the sixteen-year-old child of the witness spouse. At trial, the spouse testified to other acts of sexual misconduct with the couple's minor children that the children themselves had already testified to. In overruling the defendant's claim that the spouse should have been incompetent to testify under Article 38.11, the Court of Criminal Appeals rejected the contention that such testimony is competent only if going to offenses charged in the indictment, stating:

[T]he question of whether an offense "involves" any grade of assault does not depend upon the allegations in the charging instrument but must be determined from the facts and circumstances in the particular case ... Since it appears that we are not bound by the allegations in the charging instrument to determining whether or not the case involves "any grade of assault or violence," we must determine that issue from the facts presented.

Garcia v. State, 573 S.W.2d at 15. After noting the testimony the spouse had given, testimony corroborating allegations of other offenses against other children in the household, the Court of Criminal Appeals concluded that, "This testimony outlines a fact situation which would constitute an assault under [the Penal Code]." Id. at 15.

In Young v. State, the defendant appealed a conviction for aggravated assault, asserting that his wife was not competent to testify against him. The defendant in Young had committed the offense by ramming a car driven by another man, but in which his wife was an occupant. The wife apparently suffered some injury in the collision, and the state argued that such injury allowed her to testify against her husband, notwithstanding the fact that the state charged the defendant only with the aggravated assault against the other man in the automobile, and did not mention the wife's injuries in any manner in the indictment. The Court of Criminal Appeals held that the wife was incompetent to testify under Article 38.11. In its opinion on the state's Motion for Rehearing, the Court expressly declined to apply the test set forth in Garcia v. State, stating:

The exceptional situation at issue in Garcia, supra, however, was ... 'or against any child of either under 16 years of age' ... The dispositive question ... was whether the alleged act of indecency with a child is 'an offense involving any grade of assault ... committed ... against any child ...' [emphasis in the original]

Young v. State, 603 S.W.2d at 853.

In the instant case, it is appellant's position that Young effectively displaces Garcia regarding the test for whether a spouse may testify under the "assault" exceptions to Article 38.11. In appellant's view, it is the indictment and the indictment alone that determines a spouse's competence to testify under this provision of the Code of Criminal Procedure. The state contends that the basic test established in Garcia, that of looking at the entire facts of the case, is still valid; under that test, the state claims, the events of December 10, 1982 clearly show that appellant engaged in violent criminal behavior against his wife, both prior and subsequent to his killing of the victim, sufficient to make his wife a competent witness against him. We agree with the state's interpretation of the two foregoing cases.

We note, first, that nothing in Young holds the basic test, that of looking to the total circumstances of the events, has become altered in any manner since the Court of Criminal Appeals espoused it in Garcia; on the contrary, it appears that, in Young, there were not enough facts to establish that the spouse's testimony was permissible under Article 38.11, while in Garcia those facts engendering...