Ronald David Ludwig v. State

Ludwig v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-91-176-CR

     RONALD DAVID LUDWIG,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 17,857

OPINION DENYING REHEARING

      Appellant was convicted of capital murder on August 3, 1991, and the jury assessed his punishment at imprisonment for life. We affirmed the conviction by written opinion on February 16, 1994.

      On February 22, Appellant filed a pro-se motion for an extension of time to file a motion for rehearing, which we denied because he is represented by counsel. While the motion for extension of time was pending, Appellant filed a timely pro-se motion for rehearing. We did not act on that motion because time remained for Appellant's counsel to file a motion for rehearing. Counsel have, however, filed nothing further.

      We will review Appellant's pro-se motion for rehearing in the interest of justice.

      Appellant's motion for rehearing assails our denial of his claim of privilege under Rule 504(1) of the Rules of Criminal Evidence as to statements made by him to Theresa Trojacek, his wife. See Tex. R. Crim. Evid. 504(1). We determined that the phrase "of either spouse" in Rule 504(1)(d)(2) does not modify the term "any minor child." See id. 504(1)(d)(2). Thus, because Appellant was being tried for a crime against the person of a minor child—Matthew Trojacek, age five—the exception denies him the right to claim the privilege concerning confidential communications made to his wife. See id. 504(1).

      Appellant asserts that our decision is contrary to the Court of Criminal Appeals' decision in Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990), cert. denied, ——— U.S. ———, 111 S. Ct. 2914, 115 L. Ed. 2d 1077 (1991). We considered the Johnson opinion on original submission and, finding that the relevant part of that opinion only interpreted the provisions of Rule 504(2) relating to the spousal privilege not to be called as a witness rather than giving any interpretation to exceptions contained in Rule 504, rejected it as part of our analysis. See id.; Tex. R. Crim. Evid. 504(1), (2). Although Appellant is correct that the language of the pertinent exception of Rule 504(1) is identical to an exception in 504(2), the Johnson opinion simply does not discuss either part of the Rule. Instead, the Court discussed the privilege that a spouse has not to be called as a witness—noting that the absolute disqualification of the former article 38.11 has been removed and replaced with a privilege—and held that error occurred, although harmless, when the State called the defendant's spouse as a witness in front of the jury while knowing that she would claim her privilege not to testify. See Johnson, 803 S.W.2d at 283.

      Next, Appellant cites three cases from the courts of appeals. Riley v. State focuses on the meaning of the phrase "member of the household" in Rule 504(2)(b). Riley v. State, 849 S.W.2d 901, 903 (Tex. App.—Austin 1993, pet. ref'd). Gibbons v. State and Fuentes v. State discuss only the spousal privilege of Rule 504(2). Gibbons v. State, 794 S.W.2d 887, 892 (Tex. App.—Tyler 1990, no pet.); Fuentes v. State, 775 S.W.2d 64, 65-66 (Tex. App.—Houston [1st Dist.] 1989, no pet.). Rule 504(2)(a) specifically grants a spouse the right to testify for the State, i.e., the privilege not to testify belongs to the spouse and can be waived by him or her "even over objection by the accused." Tex. R. Crim. Evid. 504(2)(a). The privilege granted by Rule 504(1) not to disclose or to prevent another from disclosing a particular confidential statement made to one's spouse belongs to the person making the statement. Id. 504(1)(a), (b), (c). Each part of the Rule contains an exception from the general rule of privilege "in a proceeding in which an accused is charged with a crime against the person of any minor child or any member of the household of either spouse." Id. 504(1)(d)(2), 504(2)(b). We interpreted only the "any minor child" provision of Rule 504(1)(d)(2), a phrase not interpreted in any case cited by Appellant.

      Appellant cites a fourth case as "Cochran v. State, 844 S.W.2d 494 (1991)." No such case exists in Volume 844, and even by resorting to searches of electronic databases, we have been unable to find a case similar to the factual summary given by Appellant.

      Finally, Appellant makes arguments about the policy reasons behind the exceptions contained in Rule 504 and arguments about its legislative history and purpose. We remain satisfied that our original analysis is correct.

      Finding Appellant's motion for rehearing without merit, we deny it.

                                                                                     BILL VANCE

                                                                                     Justice

Before Chief Justice Thomas

      Justice Cummings and

      Justice Vance

Motion for rehearing denied

Order issued and filed April 6, 1994

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