Goode v. State

740 S.W.2d 453, 1987 WL 4276

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1987
• Docket: 345-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of capital murder, V.T.C.A. Penal Code, § 19.03(a)(3), and, upon a negative finding on future dangerousness, Art. 37.071, V.A.C.C.P., sentenced to life imprisonment. On appeal, the court of appeals for the Ninth Supreme Judicial District affirmed with one justice dissenting. Goode v. State, No. 09-33059CR (delivered February 21, 1985) (unpublished). Appellant then petitioned this Court for discretionary review, arguing inter alia, that the court of appeals erred in affirming the denial of her motion for mistrial timely made after the trial court limited her to nine peremptory challenges during jury selection and then severed the only jointly tried codefendant, during the State’s case in chief, for the express reason of antagonism and mutually exclusive defenses. Noting that this appeared to be an important question of state law which has not been, but should be, settled by this Court, we granted review pursuant to Tex. R.App.Pro. Rule 200(c)(2). We will reverse the court of appeals and remand the cause for a new trial.

I.

The evidence at trial, viewed in the light most favorable to the verdict, showed that appellant and her mother, Rowena Anderson (hereafter “Rowena”), employed appellant’s brother, Johnny Anderson, (hereafter “Anderson”), and a mutual friend Delvin Johnson, (hereafter “Johnson”), to murder appellant’s husband. All four were originally charged with capital murder in separate indictments. One week after she filed a “Motion for Speedy Trial,” however, Rowena was jointly reindicted with appellant. The State then announced its intention to try mother and daughter together. See, Art. 36.09, V.A.C.C.P. Both moved for severance and separate trials immediately upon learning of these developments.¹

During subsequent pretrial hearings, appellant introduced evidence showing that “Rowena’s position at trial will be that she is innocent and [appellant] is the culpable party [and] appellant would do the same as regards Rowena_” In addition, she notified the court of her desire to introduce evidence of prior acts of violence by Rowena. Moreover, she asserted that she would testify in the guilt phase of the trial (which she did) but that Rowena would not (which Rowena’s counsel confirmed) and therefore that her attorney would have a duty to comment upon Rowena’s silence, creating an irreconcilable conflict between appellant’s Sixth Amendment rights under the Federal Constitution and Rowena’s Fifth Amendment privilege. See, De Luna v. United States, 324 F.2d 375 (CA5 1963), reh. denied, 324 F.2d 375 (CA5 1963). Finally she argued that trial under these circumstances would deprive her of seven peremptory challenges and force her to accept a jury selected in part by a codefend-ant biased towards the prosecution’s interests.

Upon the State’s representation that severance for antagonism is limited to code-fendants pursuing mutually exclusive positions “so that the belief of one defendant’s story requires his acquittal and ... the other’s conviction,” that this would be satisfied only if appellant “gets on the stand and says: ‘Rowena, my mother, did it. I didn’t,’ ”² and that, given the code-fendant’s relationship, such a claim would be “purely speculation” and “almost against common sense,” the trial court denied the motions to sever and proceeded to try appellant and her mother together.³

As a result, the State received sixteen peremptory challenges during jury selection, Rowena received eight and appellant, granted an extra peremptory challenge on her motion after exhausting her allotted eight, received nine. Appellant expressly accepted six of the eight venirepersons struck by Rowena and, objected or requested additional peremptory challenges and reurged her motions for mistrial and sever-anee as each was excused. All objections and motions were denied. The jury was then impaneled and sworn and trial recessed for one week.

During the recess appellant’s counsel learned that one of his investigators had, by misrepresenting herself as an agent of Rowena’s attorney and against express orders from counsel for both defendants, repeatedly interviewed Rowena about the offense. She taperecorded at least one of these interviews. Some of the information thus obtained was highly prejudicial to Rowena and inconsistent with her prior statements. Ultimately the investigator also delivered a copy of the taperecorded interview to Rowena’s counsel.⁴

Counsel for both defendants then notified the court of these developments and reurged their motions for mistrial, severance and separate trials. Counsel for Rowena also surrendered the taperecording to the court. The court again denied the motions, and instead ordered appellant’s counsel to submit all evidence derived from the interviews for pretrial in camera inspection and not to use that evidence without first approaching the bench and allowing the court to decide “whether ... to declare a mistrial as to one of the defendants and sever one from the case.” Appellant and Rowena timely objected to these orders.

Trial resumed the following Monday. After direct examination of the State’s second witness, however, counsel for appellant informed the court that he desired to use some of the information obtained through the interviews. Counsel for Rowena objected. After further discussion in chambers with both counsel and another review of the tape, the court concluded that appellant and her mother were pursuing “mutually exclusive defenses,” and had not coordinated their trial strategy or tactics. At the State’s suggestion, the trial court sought to remedy this conflict by severing Rowena only and ordered the trial continued against appellant. Appellant’s objection and subsequent motion for mistrial were denied.⁵

Appellant was ultimately convicted. Rowena was subsequently tried separately and acquitted. Appellant appealed, asserting,. inter alia, that the trial court “abused its discretion in denying Appellant’s motion for mistrial when ... Rowena’s ... case was severed.” The court of appeals, found it “meaningful and important ... that virtually 200 pages of testimony and arguments were submitted to the trial court” at the pre-trial hearings on the motion to sever. It also noted that the trial court expressly left the motions to sever in a “running” or “continuing” posture and “recognized a continuing duty to grant the motion[s] ... if ... that became the proper thing to do.” It concluded that “the trial court showed patience, forbearance and conscientiousness” and rejected appellant’s claim, “especially in view of the investigative action of [her] agent.”

II.

Appellant argues that the failure to grant her motion for mistrial violated her “statutory right under” Art. 35.15(a), supra, to “fifteen (15) peremptory strikes in a capital case,” her rights to a trial by an impartial jury under the United States and Texas constitutions and her due process right under the Fourteenth Amendment to the United States Constitution.⁶ We conclude that appellant was denied six of the fifteen peremptory challenges to which she, as a capital murder defendant actually tried separately from all codefendants, was entitled under Art. 35.15(a), supra.

A.

Joinder and severance of defendants is governed by Art. 36.09, supra. It provides in pertinent part that:

“Two or more defendants who are jointly or separately ... indicted ... for the same offense ... may be, in the discretion of the court, tried jointly or separately as to one or more defendants; ... provided ... that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that ... a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.”

This provision represents a significant change from former law. Prior to its adoption in 1965, Acts 1965, 59th Lg., p. 317 ch. 722 § 1, all defendants had an absolute right to severance upon timely request.⁷ No showing of prejudice was required. Since adoption of the 1965 Code, however, codefendants may, at the option of the State, Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972), be “tried together” unless they'can show “that a joint trial would be prejudicial.” Art. 36.09, supra, Special Commentary.

Article 35.15(a), supra, provides:

“In capital cases both the State and defendant shall be entitled to fifteen peremptory challenges. Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant; and each defendant shall be entitled to eight peremptory challenges."

This provision is identical to Art. 615 of the 1925 Code, see Article 35.15, Practice Commentary, and has been the rule in this state since adoption of that Code. However, prior Codes provided for a strikingly different scheme, viz:

“In capital cases the defendant shall be entitled to twenty peremptory challenges and the state to ten, and where there are more defendants than one tried together, each defendant shall be entitled to twelve peremptory challenges and the state to six for each defendant.”

Art. 672,1895 Code; Art. 572,1857 Code of Criminal Procedure. Thus, before adoption of the 1925 Code, a capital defendant “tried together” with a codefendant stood in as good a position with respect to the number of peremptory challenges, relative to the State, as one tried separate from his code-fendants. Moreover, because joint trials under the system prevailing prior to the present Code were thought by some to produce more uniform sentences, see, Art. 36.09, Interpretative and Special Commentaries, a defendant might well have decided to accept fewer peremptory challenges in the hopes of gaining a lighter sentence, or one at least more commensurate with that of his codefendant. Such a defendant, having failed to object to joint trial before the return of a verdict, would likely waive any complaint based upon mere limitation of his peremptory challenges to the number mandated for defendants “tried together.” Cf. Foster v. State, 652 S.W.2d 474 (Tex.App.-Houston (1st) 1983) affd 693 S.W.2d 412 (Tex.Cr.App. 1985) (Motion for severance first made after guilty stage completed presented nothing for review) and Crawford v. State, 74 S.W. 552 (Tex.Cr.App.1903) (Motion for severance after announcement of ready and impaneling jury untimely). If, instead, a defendant wished to receive the “full” number of peremptory challenges granted by the statute, he had only to exercise his absolute right to severance. See, n. 7 ante. Not surprisingly, therefore, this Court had no occasion, before adoption of the 1965 Code, to consider the precise issue now raised by appellant.

Since then, this Court has decided only one case involving an even remotely similar issue. In Harris v. State, 516 S.W.2d 931, 933-934 (Tex.Cr.App.1975), it was held not error to deny a motion for mistrial after severing the only codefendant at the conclusion of the State’s examination of its third witness on the erroneous ground that the State had suppressed evidence exculpatory to that codefendant. The Court concluded that:

“neither [the codefendant] nor the appellant was entitled to a mistrial. The fact that a “mistrial” was erroneously granted to [the codefendant] would not entitle the appellant to the same generosity, absent some error actually requiring a mistrial. No such error occurred here.”

516 S.W.2d at 934.⁸

In contrast to Harris, of course, appellant contends that an error “actually requiring a mistrial” did occur in her trial.

B.

As long ago as 1921, this Court reversed a capital conviction because the trial court improperly denied the defendant five of the fifteen peremptory challenges to which he was entitled under the predecessor to Art. 35.15(a), supra. Kerley v. State, 89 Tex.Cr. R. 199, 230 S.W. 163 (1921).⁹ The rationale there was as follows:

[T]he Legislature has prescribed the procedure to be followed in the selection and formation of the jury. The option to exercise 15 peremptory challenges ... is given by law to the accused. His right to a fair trial is denied him when the privilege of exercising these challenges is arbitrarily taken from him.

* * * * * *

... [B]y the ruling of the court [the defendant] was made, against his will, to submit his case to 5 jurors whom he sought to challenge, and whom, had the right, according to the statute, been recognized, he could have stood aside upon his peremptory challenge. It was unnecessary to show that these 5 jurors were disqualified....

******

... [T]he law fixes the number of challenges and confers upon the accused the right to arbitrarily exercise them. This right having been denied the appellant in the instant case, he having exercised all of the challenges the court would permit him to use, and having been forced to try his case before jurors who were objectionable and whom he sought to challenge peremptorily, the verdict of conviction rendered by the jury so selected cannot ... with due respect to the law, be held to reflect the result of a fair trial by an impartial jury, which it is the design of our law shall be given to those accused of crime.”

230 S.W. at 164-165.

Four years later, the Court relied on Kerley to reverse the capital murder convictions of two jointly indicted and jointly tried defendants because the trial court had limited them to a total of fifteen peremptory challenges together. Boles v. State, 102 Tex.Cr.R. 634, 279 S.W. 261 (Commission of Appeals 1925). Since then, this Court has consistently held that it is reversible error to limit a capital defendant to less than the full number of peremptory challenges granted by Art. 35.15(a), supra, except in narrow circumstances grounded in the literal language of the statute.¹⁰

C.

Under Art. 35.15(a), supra, a court may properly limit a capital defendant to less than fifteen peremptory challenges only if he is “tried together” with a codefendant.

It is clear that appellant was not “tried together” with either codefendant Anderson or codefendant Johnson. See, n. 1 ante, and cf. Crow v. State, 89 Tex.Cr.R. 149, 230 S.W. 148 (1921) (Criminal jury trial commences with impaneling or swearing of jury). It is equally clear that none of them was “tried together” with codefendant Rowena in her subsequent retrial. Cf. 23 Tex.Jur.3d, Criminal Law § 2951; Arts. 36, 33, 40.08 (repealed), 42.05 (repealed), 44.29 (both before and after amendment by Acts 1987, 70th Leg. ch. 179 § 1(b) and (c)); and Tex.R.App.Pro., Rules 32, 35 and 87(b)(2). Nor would she and appellant have been “tried together” if the trial court had severed her before impaneling the jury. Cf. Crow, supra.

Anderson received fifteen peremptory challenges in his subsequent separate trial. Rowena also received fifteen peremptory challenges in her subsequent separate retrial. Surely no one would seriously contend that Rowena should have been limited to eight peremptory challenges in her retrial solely because she proceeded together with appellant through a portion of the instant trial. There is no rational basis for holding, on the one hand, that Anderson and Johnson were not “tried together” with appellant, that Rowena was not “tried together” with a codefendant in her subsequent retrial and that appellant would not have been “tried together” with any code-fendant if Rowena had been severed before the jury was impaneled; but, on the other hand, that appellant was “tried together” with a codefendant, and so she alone of all the codefendants could be limited to eight peremptory strikes, merely because she and Rowena proceeded jointly through a portion of her trial. Therefore, given the consequences of adopting a contrary construction, and after examining the context, history and legislative intent of Arts. 35.-15(a), 36.09 and related statutes, see Tex. Gov.Code Ann., § 311.023, we hold that appellant was not “tried together” with a codefendant for purposes of Art. 35.15(a) and was entitled to trial before a jury selected in a procedure in which she was granted a full fifteen peremptory challenges.¹¹ Nor, contrary to what the court of appeals appears to have believed, does the conduct of appellant’s investigator excuse the trial court’s failure to follow the mandatory dictates of the statute once it severed Rowena so that appellant was in fact tried separately from all of her codefend-ants. Assuming that there are circumstances under which appellant might forfeit her rights under this statute, we do not find such circumstances present in this case. The investigator acted against the express orders of counsel for both appellant and Rowena. Appellant no more precipitated the unprofessional conduct of the investigator than did Rowena’s counsel, or counsel for the state.

Moreover, appellant and Rowena were severed for the express reason that their defenses were so antagonistic as to be mutually exclusive. That is, the jury could have believed one only if it disbelieved the other. See, n. 2 ante. It was in the interest of each to inculpate and otherwise undermine the position of the other. That' is to say, the codefendant was “placed ... in a position adverse to appellant and comparable to that of the prosecutor.” See, De Grate v. State, 518 S.W.2d 821, 322 (Tex.Cr.App.1975) and also De Luna, supra. This antagonism, apparent to both prior to the selection of the jury, resulted in each defendant examining the jury and exercising her peremptory challenges in a manner prejudicial to the other. The practical result was that appellant confronted two “prosecutors” during jury selection who together received approximately three times the voir' dire time and almost three times the number of peremptory challenges that she did. Payton v. State, 572 S.W.2d 677, 680 (Tex.Cr.App.1978) (On Appellant’s motion for rehearing). See also, Martinez v. State, 621 S.W.2d 797, 799 (Tex.Cr.App.1981).

For these reasons, we hold that the trial court’s denial of appellant’s timely motion for mistrial, after limiting her to nine peremptory challenges and severing the only jointly tried codefendant during the State’s case in chief for the express reason of antagonism and mutually exclusive defenses, was reversible error.¹² Accordingly, the judgments of the court of appeals and the trial court are reversed and the cause is remanded for a new trial.¹³

TEAGUE and WHITE, JJ„ concur in the result.

1 . Codefendant Johnson was granted limited immunity, pled pursuant to a plea bargain and testified for the State at appellant's trial. Code-fendant Anderson was subsequently tried and convicted separately.

2 . This is somewhat of an exaggeration. The defendants’ positions must be "mutually exclusive” in the sense that "the jury in order to believe the core of one defense, must necessarily disbelieve the core of the other,” See, United States v. Lee, 744 F.2d 1124, 1136 (CA5 1984) and De Grate v. State, 518 S.W.2d 821, 822 (Tex.Cr.App.1975). In any event, appellant did attempt to exculpate herself during her case in chief by, inter alia, inculpating her mother. Thus, for example, she introduced evidence that Rowena had repeatedly attempted to injure or kill her (Rowena’s) husband, often by use of a knife, twice with a firearm and once by poison; that she had threatened to kill appellant’s husband a number of times in the months prior to his death, most recently the day before his murder; and that, after the day of the murder, Rowena told appellant that she (Rowena) had killed appellant’s husband because of an argument over an illegal narcotics deal. Moreover, appellant testified that two days before the murder she overheard Johnny Anderson volunteer to kill her husband for Rowena, and that she overheard him so offer again the day before the murder to which Rowena replied "No, I hired Johnson.” Finally, appellant expressly accused Rowena of killing her (appellant’s) husband at least six times during her testimony.

In addition, counsel for appellant and Rowena often clashed during voir dire, more than once accusing each other of being the guilty party. Indeed, the defendants became so antagonistic at one point that Rowena’s counsel asked to be seated at the prosecutor’s table.

(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

3 .In addition, however, the court expressly ruled that both defendants’ motions would remain “continuous” or "running” throughout the trial. While this court has previously indicated skepticism concerning the efficacy of a “running objection,” e.g., Goodman v. State, 701 S.W.2d 850, 863 (Tex.Cr.App.1985), we treat this ruling as a formal recognition by the trial judge of his continuing duty under the Federal Constitution to order a severance, sua sponte if necessary, should sufficient prejudice appear. See Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 948, 4 L.Ed.2d 921, reh. denied, 363 U.S. 858, 80 S.Ct. 1605, 4 L.Ed.2d 1739 (1960); and Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971).

4 . Neither the recording nor a transcript thereof appears in the record before this Court. Therefore, we do not know the precise contents of this conversation.

5 . The State mistakenly asserts that "neither party objected when the trial court decided to grant a mistrial to Rowena ... instead of appellant.” In fact, the trial court first indicated that it would sever the defendants, then stated that it "was going to grant a mistrial as to one of the two defendants,” and then solicited objections and opinions from all parties. After the State argued that the trial should proceed as to appellant, her counsel objected and argued that:

"... we have been in antagonistic positions from the beginning and have so stated ... we have gone through this trial to this point in an antagonistic position to our codefendant. We’ve had to go through the entire jury selection that way. It has all resulted in problems with jury selection. We have received less peremptory strikes.... Our client has been suffering as a result of being in this position in jury selection and all the other decisions that we have pointed out as we went along.

For that reason, I think that we would be prejudiced by continuing at this point having gone this far in a joint trial.”

The trial court overruled this objection, and then denied appellant’s motion for mistrial.

6 . Appellant does not invoke the similar "due course of law" provision on Article I, § 19 of the Texas Constitution. See also Article 1.04, V.A.C. C.P. Because we agree with appellant that her right under Article 35.15(a) was violated, we do not decide whether her Sixth Amendment right under the Federal Constitution, her Fourteenth Amendment right to due process of law or her rights under Article I, §§ 10 and 15 of the Texas Constitution to trial by "an impartial jury” were also violated.

7 . “Two or more defendants jointly prosecuted may sever in the trial upon the request of either." See also, Art. 587, 1857 Code; Art. 706, 1895 Code; and art. 650, 1925 Code. This was also the common law rule, see 6 Encycl.Dig.Tex. Reports (Cr.) 292-297 (1914).

8 . Compare, however, Garcia v. State, 626 S.W. 2d 46 (Tex.Cr.App.1981) affirming the capital conviction of a defendant tried together with a codefendant over objection that a venireman was improperly dismissed on the State’s challenge for cause, viz:

“Appellant was not caused to exhaust his peremptory challenges by an improper ruling on the challenge for cause. The prospective juror was excused by a peremptory challenge of the co-defendant who did not exhaust all his peremptory challenges. The appellant did not lose a peremptory challenge as a result of the court’s ruling. No harm has been shown.” 626 S.W.2d at 56. In the instant cause it was the trial court, rather than the codefendant, who allegedly erroneously limited appellant's peremptory challenges.

9 . The trial court had ruled that the defendant would be allowed only ten peremptory challenges when "the prosecuting attorney expressly” waived the death penalty. This Court found that ruling to be error because the offense with which Kerley was charged "was made a capital offense by the lawmaking power of the state, and ... its classification as such cannot be changed by any declaration that the prosecuting attorney may make.” 230 S.W. at 164.

10 . See, 27 Tex.Jur.3d, Criminal Law § 4326, Batten v. State, 533 S.W.2d 788, 793 (Tex.Cr.App.1976) and Dowden v. State, 580 S.W.2d 364 (Tex.Cr.App.1979); accord, Hogue v. State, 155 Tex.Cr.R. 310, 234 S.W.2d 687, 688 (1950), Wigginton v. State, 153 Tex.Cr.R. 574, 223 S.W.2d 232 (1949) (On Appellant’s Motion for Rehearing), Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977) and Hicks v. State, 664 S.W.2d 329 (Tex.Cr.App.1984). See also, Benson v. State, 95 Tex.Cr.R. 311, 254 S.W. 793, 795 (1923) (Same rule for non-capital felony).

11 . Every Code of Criminal Procedure since 1857 has collected the provisions governing trial in a discreet section entitled, appropriately enough, ‘Trial and Its Incidents” see 1857 Code, Title V; 1895 Code, Title VIII; 1925 Code Title VIII; present Code, Chapters 32 through 39. This section defines a more or less comprehensive scheme, essentially unchanged since 1857, beginning with assembly of the array and the selection of the jury and culminating with the return of a verdict by the jury so selected, see e.g. Arts. 35.23, 36.29, 36.31 and 36.33, and, if the verdict is one of guilt, proceeding to assessment of punishment. This scheme is more or less encapsulated in Art. 36.01, V.A.C.C.P., providing that the “Order of Proceedings in Trial," after “the impaneling of the jury,” shall proceed from the reading of the charging instrument to the jury and to "a finding of guilt" and punishment. See, Art. 580, 1857 Code; Art. 697, 1895 Code; Art. 642, 1925 Code.

Gibson v. The State, 3 Tex.App. 437, 438-439 (1878), appears to be the first Texas criminal case to consider "what”, in the context of this scheme, "is a trial ... and when can it be said to be complete and at an end?” That court concluded:

“In criminal law it is synonymous with the term, ‘criminal action,’ which, as used in our Penal Code, means the whole and any part of the procedure which the law provides for bringing offenders to justice ... Such a trial ... may well be held incomplete until all the issues of law as well as of fact have been determined and the final judgment entered. Until this is done, no appeal can be prosecuted. Hill v. The State, 41 Tex. 253, 255 (1874) ] Nor is the trial complete until the accused has had an opportunity, if he so desires, to avail himself of his statutory right to present his motion for a new trial and in arrest of judgment, (citations omitted).

This remains a valid statement of the law today. See, 23 Tex.Jur.3d, Criminal Law §§ 2528, 3455, 3456, 3569,-70, 3576, 3578-80 and; Arts. 40.01, 40.03, 40.05, 40.08, 44.11, 41.01, 41.02, 41.05, V.A.C.C.P. (repealed) see now Tex.R.App.Pro., rules 30, 31(a), (c) and (e), 32, 33-35, 40(b) and 58.

12 . In dissent, Presiding Judge Onion concludes that our holding in this cause runs counter to the dictates of common sense. This conclusion is not self evident, however, and Judge Onion does not elaborate, except to opine that the error was not preserved for appellate review— an untenable view apparently not shared by the court of appeals, which ruled, albeit erroneously in our judgment, on the merits of appellant’s contention.

Judge Onion also admonishes us for deciding an issue "not first passed upon by the Court of Appeals.” It is true that in rejecting appellant’s fourth point of error, viz, that the trial court should have granted her motion for mistrial when Rowena was severed, the court of appeals did not expressly allude to appellant’s argument that she was denied her full complement of peremptory challenges. This is not to say, however, that such was not the basis of her argument in her brief on appeal — manifestly it was. It would be unjust for this Court now to ignore the core of appellant’s complaint on the ground that the court of appeals, though ostensibly reaching the merits, failed to acknowledge it. In reaching that core argument, we do not thereby pass on a contention not raised and decided by the court of appeals.

13 . Because it may recur on retrial, we note also that appellant is correct when she argues, in another ground for review, that admission of the statement made by Donna Anderson to police prior to trial, whether as past recollection recorded or as impeachment, was error. The State failed to lay the necessary predicate for the statement as past recollection recorded because Donna could not guarantee the correctness of its contents. See Welch v. State, 576 S.W.2d 638, 641 (Tex.Cr.App.1979) and Wood v. State, 511 S.W.2d 37, 44 (Tex.Cr.App.1974). In addition, the statement was not admissible as impeachment of the State’s witness because the State failed to show prejudicial surprise and showed instead only that the witness "could not now remember if [appellant] had made such [a] statement.” Wood, supra, at 42. See also Ellis v. State, 683 S.W.2d 379 (Tex.Cr.App.1984), particularly n. 2 and authorities discussed therein. We therefore adopt Justice Burgess’ dissent on this matter and trust that the State shall conduct itself accordingly should it retry appellant.

We also granted review on another ground alleging improper jury argument. Because even if erroneous, such argument does not seem likely to be repeated in the event of retrial, we do not presently address this ground.