¶1dissenting.
¶2I respectfully dissent from the opinion filed by the majority which relies on the four-prong test for the grant of a new trial due to “newly discovered” or “newly available” evidence set forth in Whitmore v. State, 570 S.W.2d 889, 896 (Tex.Cr.App.1978). The disparity among the cases cited as authority in Whitmoreas to the fourth prong of that test, i.e., that the evidence not be cumulative, corroborative, collateral or impeaching, disturbs me for two reasons.
¶3First, the semantic distinctions in the cases create two different prongs. The Hernandez v. State case, 507 S.W.2d 209 (Tex.Cr.App.1974), cites Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973) as authority for proscribing evidence which is found to be admissible and not merely cumulative, corroborative, collateral or impeaching. 507 S.W.2d at 212. The authority on which Powellrelies is a citation to 41 Tex.Jur.2d New Trials § 105 (1963). Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974), string cited with Hernandezdoes not employ a fourth prong. The test in Williamsrequires that: (1) the evidence is in fact newly discovered; (2) no lack of diligence caused the failure to discover that evidence sooner; and (3) the evidence is probably true and a different result probably would be reached. 504 S.W.2d at 482. A third case cited with Williamsand Hernandez, Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975), applies the three-prong test found in Williamsquoted above. 527 S.W.2d at 309. Therefore, Whitmorecites two out of three cases as authority for its four-prong test which do not apply such a test.
¶4The second factor due to which I find the majority opinion disturbing is the possibility that newly available or discovered evidence will rarely surmount the heavy burden imposed by the proscription against “merely cumulative or corroborative evidence” in the Whitmoretest in a case involving co-defendants. Black’s Law Dictionary defines “cumulative” evidence as additional evidence to the same point, i.e., a same or new witness merely repeating in substance and effect, or adding to prior evidence. Blacks Law Dictionary 455 (4th rev. ed. 1977). “Corroborative” is evidence which supplements evidence already given and which tends to strengthen or confirm, i.e., additional evidence of a different character which supports the same point. Id. at 414. Evidence supplied by co-defendants involved in the same incident at the same time would necessarily be corroborative and/or cumulative, which poses serious questions as to when, if ever, in a case such as here, evidence from a later acquitted co-defendant would be available to a co-defendant currently on trial.
¶5An additional reason for my dissenting position is the majority’s imposing a procedural requirement nowhere required in order to show diligence as prescribed in all the newly found evidence tests described above. Another situation would indeed exist where a defendant knows his/her co-defendant will invoke his/her privilege and further knows that in such a case the code of criminal procedure required a motion for severance at the beginning of the trial. Justice is not served where as in the case before us a defendant is denied the testimony of the only other witness to the offense due to a non-existent procedural mandate. Moreover, the failure to strictly adhere to procedural rules can never justify the denial of important constitutional rights. I would urge that this case be reversed and remanded for a new trial and the procedural rule demanded by the majority be required in future cases. I cannot, however, justify its application here.