Young v. State , 1980 Tex. Crim. App. LEXIS 1093 ( 1980 )

OPINION

DOUGLAS, Judge.

The conviction is for aggravated assault. A prior conviction was alleged for enhancement. The jury assessed punishment at fifteen years.

The sole contention of appellant is that the court erred in allowing appellant’s wife, Sandra Gould, to testify against him contrary to Article 38.11, V.A.C.C.P. The evidence is uncontradicted that appellant drove his Ford automobile into a Volkswagen automobile occupied by Tommy Gould, Louis Graigo and appellant’s wife. When the appellant’s wife was called, a hearing was held outside the presence of the jury. The State admitted, and it was proved, that the witness was the wife of appellant. The prosecutor contended that since appellant’s wife was injured in the collision she could testify in this case against him. The indictment in the case did not allege that she was injured but alleged that Tommy Gould, her brother, was injured. The prosecutor also contended that her testimony would be proper because what occurred to her would be res gestae of the offense.

The witness testified that she was legally married to appellant, that she was in the automobile at the time of the collision and that she was injured, and that she went to the hospital as a result of the injuries.

Article 38.11 provides, in part, as follows:

“Neither the husband nor wife shall, in any case, testify as to communications made by one to the other while married. . 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 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 nonsupport of his or her spouse or minor child.”

The exception in the statute that a spouse may testify against another for injuries committed against the other does not apply in this case because the wife was not the injured party in the case being tried.

The rule that a wife may not be called to testify against her husband was recognized in Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977). In Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972), the judgment was reversed because the wife was called to testify against her husband. That case noted that even though a wife did not testify the mere calling of her as a witness in front of the jury and causing the defense to make an objection was reversible error.

The eases of Stevens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975), Shirley v. State, 501 S.W.2d 635 (Tex.Cr.App.1973), and Newby v. State, 384 S.W.2d 133 (Tex.Cr.App.1964), are not in point because the defense had called the spouse to testify and later the defense objected that the cross-examination went beyond the scope of the direct examination and was violative of Article 38.11, V.A.C.C.P., (and its predecessor). The Court held that only new and incriminating evidence brought out through the testimony of the spouse on cross-examination would constitute reversible error.

■ Because the State called the wife as a witness, who testified against appellant, the judgment is reversed and the cause remanded.

Before the court en banc.