Whitehead v. State , 1968 Tex. Crim. App. LEXIS 1222 ( 1968 )

OPINION

ONION, Judge.

The question presented by this appeal is whether the State laid a sufficient predicate to authorize the introduction of an absent witness’ testimony given at a former trial as an exception to constitutional right of confrontation guaranteed by both the state and federal Constitutions. Art. I, Sec. 10, Texas Constitution, Vernon’s Ann.St.; Sixth Amendment, United States Constitution.

The offense is murder without malice; the punishment, assessed by the jury, five (5) years confinement in the Texas Department of Corrections.

In view of our disposition of this cause, it will not be necessary to set forth the facts of the case. The indictment charges the appellant with the shooting death of Arthur Peel on or about the twelfth day of March, 1966. The record reflects that the first.trial of this cause resulted in a mistrial as a result of a hung jury, and this appeal is from the conviction at the second trial.

In his fourth ground of error, the appellant contends the trial court erred in allowing the district attorney to read the purported testimony of Cecil E. Porter, Jr., given at the prior trial over his objection that the State failed to lay the proper predicate to make such testimony admissible, including his observation that the State had not availed itself of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. See Art. 24.28, Vernon’s Ann.C.CP.

If a witness has once testified in a case, on a preliminary hearing or on a former trial, and the accused was present and had the opportunity to cross-examine the witness, and such witness has since died, or resided out of the state, or has removed beyond the limits of the state, or cannot attend the trial by reason of age or bodily infirmity, or has been prevented from attending court through the act or agency of the other party, his testimony may be reproduced on a subsequent trial of the same case if the proper predicate be laid for its admission. See Article 39.01, V.A.C.C.P.; 1 Branch’s Ann.P.C.2d Ed., Sec. 98, p. 110. To be admissible it must be shown that the witness’ testimony at the former trial or hearing was given under oath, that it was competent, that the accused was present and had an adequate opportunity to cross-examine him through counsel, that the accused was the defendant at the former trial or hearing upon the. same charge. See 24 Tex.Jur.2d, Sec. 698, p. 337; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. Such predicate must be clearly and satisfactorily established before such testimony can be reproduced. 1 Branch’s Ann.P.C.2d Ed., Sec. 99, p. 112.

This traditional exception to the confrontation requirement where the witness is unavailable and has given testimony at a previous judicial proceeding against the same accused which was subject to cross-examination by him “has been explained as arising from necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence, §§ 1395-1396, 1402 (3d ed 1940); McCormick, Evidence, §§ 231, 234 (1954).” Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.

Where the State seeks to reproduce testimony of an absent witness given at a former trial it has the burden of establishing an exception to the right of confrontation. Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446.

In the case at bar the district attorney elicited from one of his witnesses, W. A. Harris, that Cecil Porter was in the State of Nevada where he worked and resided. Then, without further predicate or any showing that the witness was in fact unavailable to the State, and over objection, the district attorney read to the jury what he said was the testimony of Cecil Porter, Jr., given on direct examination at the former trial. Such eye witness testimony related to the shooting of the deceased outside the Valley Bar and was material and most damaging to the appellant.

Among other things it is appellant’s contention that in attempting to lay the predicate for the introduction of this testimony the State failed to sufficiently show that the absent witness resided out of state and that his return was indefinite, citing Cumpston v. State, supra, and Brent v. State, 89 Tex.Cr.R. 544, 232 S.W. 845. Further, he urges that since the State resorted to the use of a purported transcription of the witness’ testimony at a former trial, it was incumbent on the prosecutor to first have such transcription properly identified and its accuracy sworn to. See Dowd v. State, 52 Tex.Cr.R. 563, 108 S.W. 398; Franklin v. State, 62 Tex.Cr.R. 433, 138 S.W. 112; Eads v. State, 74 Tex.Cr.R. 628, 170 S.W. 145; Serna v. State, 110 Tex.Cr.R. 220, 7 S.W.2d 543; Young v. State, 82 Tex.Cr.R. 257, 199 S.W. 479.

We need not evaluate these matters for in light of Barber v. Page, supra, another “defect” in the attempted predicate clearly calls for reversal.

Recognizing the traditional exception to the confrontation requirement where a witness is unavailable and has given testimony at a previous judicial proceeding against the same defendant which was subject to cross-examination, the Supreme Court nevertheless held that “a witness is not ‘unavailable’ for the purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” At Barber’s Oklahoma state trial for robbery, the prosecution, over objection, introduced the transcript of the testimony of a witness who was jointly, charged with him, given at the preliminary hearing, at which Barber and the witness were jointly represented by the same counsel, who withdrew as the witness’ attorney when such witness waived his self-incrimination privilege. Such counsel did not cross-examine such witness although an attorney for another co-defendant did. At the time of Barber’s trial the witness was incarcerated in a federal prison in Texas, and the State made no effort to obtain his presence at the trial. His conviction was affirmed by the Oklahoma Court of Criminal Appeals. On certiorari from the Tenth Circuit Court of Appeals’ affirmance (381 F.2d 479) of the federal district court’s rejection of Barber’s habeas corpus claim of a confrontation denial, the United States Supreme Court reversed, holding that the use against Barber at his trial of the witness’ preliminary hearing testimony deprived him of his Sixth and Fourteenth Amendment rights to be confronted with the witness against him at his trial.

Making the result unanimous, Mr. Justice Harlan concurred in a separate opinion on the premises of his view that the case was governed by the due process clause of the Fourteenth Amendment, stating he agreed that the State’s failure to attempt to obtain the presence of the witness denied the petitioner due process.

In Barber the Court noted that “various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance because the process of the trial Court is of no force without the jurisdiction, and the party desiring this testimony is therefore helpless.’ 5 Wigmore, Evidence, § 1404 (3d ed 1940).”

Discounting the present accuracy of that theory the Court called attention to provisions of 28 U.S.C. § 2241(c) (5) giving the federal courts power to issue a writ of habeas corpus ad testificandum at the request of state prosecutorial authorities for prospective witnesses currently in federal custody, and the policy of United States Bureau of Prisons to permit federal prisoners to testify in state court pursuant to state issued writs of habeas corpus ad testi-ficandum. As to witnesses not in prison, attention was called to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. See footnote 4; See also 9 Uniform Laws Ann., p. 50 (1967 Supp.).

In the case at bar as in Barber, the State made no good-faith effort to obtain the absent witness and so far as this record reveals, the said Uniform Act being in force in Nevada¹ and Texas,² the sole reason why Porter was not present was because the State did not attempt to seek his presence. “The right of confrontation may not be dispensed with so lightly.” Barber v. Page, supra.

In Webb v. State, 160 Tex.Cr.R. 144, 268 S.W.2d 136, it was recognized that the exercise of diligence is not required of either the State or an accused before taking advantage of the right to reproduce testimony of a witness out of state, and no showing need be made that either party availed themself of the said Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Proceedings. To the extent of any conflict Webb v. State, supra, and cases following it³ are overruled by the United States Supreme Court decision in Barber v. Page, supra. Therefore, it is clear that in the case at bar the State was not only required to show that the absent witness resided out of state and that his return was indefinite as opposed to a temporary absence but to demonstrate a good-faith attempt to obtain his presence at the trial. This the State did not do. See Holman v. Washington, 5th Cir., 364 F.2d 618; Government of the Virgin Islands v. Aquino, et al., 3rd Cir., 378 F.2d 540.

The jdugment is reversed and cause remanded.

1 . N.R.S. 178.295-178.320.

2 . Article 24.28, V.A.C.C.P., 1965.

3 . Cf. Pointer v. State, Tex.Cr.App., 375 S.W.2d 293, overruled on other grounds, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. See also 391 S.W.2d 62.