Bingham v. State

915 S.W.2d 9, 1994 Tex. Crim. App. LEXIS 145, 1994 WL 880500

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1994
• Docket: 891-92
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of arson and his punishment assessed at confinement in the penitentiary for 15 years and a fine of $1,000.00. The Court of Appeals reversed, holding that the trial judge erred not to instruct the jury that “testimony of an accomplice” must be “corroborated by other evidence tending to connect the defendant with the offense eommitted[.]” Tex.Code Crim.Proc. art. 38.14. Bingham v. State, 833 S.W.2d 538 (Tex.App.—Dallas 1992). We granted the State’s petition for discretionary review to consider whether the out-of-court declaration of an accomplice, repeated in court by a nonaccomplice witness under an exception to the hearsay rule, may be the “testimony of an accomplice” within the meaning of article 38.14. Tex.R.App.Proc. 200(c)(2). We hold that it may.

During trial, the State elicited testimony from a criminal investigator for the McKinney Police Department, who opined that the fire which destroyed appellant’s trailer home was the product of arson. The officer also testified that, during his investigation of the incident, he questioned appellant’s wife at his office and was told by her that she and appellant had planned to burn the trailer for some time before appellant actually set fire to it. Over appellant’s hearsay objection, this testimony was received as a declaration against interest under Rule 803(24) of the Texas Rules of Criminal Evidence. It is conceded by all that appellant’s wife was an accomplice to the arson for which he was convicted in this cause.

Before submission of the ease for jury consideration, appellant requested that the court’s charge include an instruction to the effect that his wife was an accomplice and that the jury might not convict him based upon declarations she made to the criminal investigator unless corroborated by other evidence tending to connect him with the offense. Tex.Code Crim.Proc. art. 38.14. The trial judge refused this instruction, a ruling which the State defends upon the ground that appellant’s wife did not give “testimony” within the meaning of article 38.14 because she did not testify under oath in court. The Dallas Court of Appeals disagreed, holding that the instruction should have been given because, to hold otherwise, would permit the State “to do indirectly that which it cannot do directly.” Bingham, 833 S.W.2d at 544. In light of the State’s argument, we interpret this holding to be that the extrajudicial declarations of appellant’s wife were tantamount to “testimony” under article 38.14.

In ordinary parlance, “testimony” means “evidence based on observation or knowledge.” The New Merriam-Webster Dictionary, p. 741 (1989). Such evidence need not necessarily be given in court or under oath. People testify when they bear witness, when they tell • others what they have seen, heard, or experienced personally. It doesn’t really matter where or when they

do it. It is what they do that matters. Even in a legal context, we don’t normally consider > it redundant to speak of “sworn testimony,” “testimony under oath,” or “testimony in open court.” E.g., Tex.Code Crim.Proc. arts. 18.20 § 7(e), 20.17(c)(1), 38.071 § 4(b)(5);

Tex.Gov’t Code § 301.022; Tex.Rev.Civ.Stat. Ann. arts. 911a § 12, 1446c § 26(c)(2); McFarland v. State, 845 S.W.2d 824, 845 (Tex.Crim.App.1992); Hightower v. State, 822 S.W.2d 48, 53 (Tex.Crim.App.1991); Duggan v. State, 778 S.W.2d 465, 467 (Tex. CrimApp.1989).

Accordingly, the plain meaning of “testimony” does broadly include at least some out-of-court statements not made under oath. Of course, we all know that the most common ordinary definition of “testimony” is “a solemn declaration made by a witness under oath esp. in a court.” The New Merriam-Webster Dictionary, p. 741 (1989). But that is really just a more specific, and a more familiar, example of the general definition.

Because “[a]ll words, phrases and terms used in th[e] Code [of Criminal Procedure] are to be taken and understood in their • usual acceptation in common language, except where specially defined[,]” courts should not be involved in thé business of redefining words used in an ordinary sense by the Texas Legislature. Tex.Code Crim.Proc. art. 3.01. See also Tex.Penal Code § 1.05(b); Tex.Gov’t Code Ann. § 311.011. Rather, when read in context, such words should be open to the broadest possible understanding to which they are reasonably susceptible in the English language. Vernon v. State, 841 S.W.2d 407,409-10 (Tex.Crim.App.1992).

In the present context, it is apparent that a reasonably competent speaker of the English language, without violating any rules of semantics or customs of usage in the English language, could very well have understood the word “testimony,” as it is used in article 38.14, to include the out-of-court statements of codefendants made to third parties. Given that such a reading of the statute, and therefore of any jury instruction based upon it, is consistent with “usual acceptation in common language,” it is not permissible for this Court to impose a different, and narrower, interpretation under the guise of statutory construction.

For this reason, the Dallas Court of Appeals did not err to hold that an accomplice witness instruction should have been given at appellant’s request, that appellant’s conviction should be reversed, and that the cause should be remanded to the trial court. The judgment of the Court of Appeals is, therefore, affirmed.

WHITE, J., not participating.