Gardner v. State

¶1concurring and dissenting.

¶2Contrary to the majority opinion, its conclusion that Robert Charles Gardner, appellant, is entitled to an acquittal in this cause is dictated by common sense is incorrect because the appellant is entitled to an acquittal because of the law, and not because of common sense. Of course, and notwithstanding the fact that the law is usually based upon common sense, the law has always been superior to common sense.

¶3Although I agree with the end result that the majority opinion eventually manages to reach, that the appellant is entitled to an acquittal, I am compelled to dissent to its leading the reader through an intricate but unnecessarily lengthy maze of dicta.

¶4It has been said more than once that oftentimes the “pudding” in one of this Court’s opinions is not in the opinion itself, but, instead, is found in the “shuck” for that case. In that instance, to find the “pudding,” all one needs to do is go and get the “shuck” and read the record on appeal that is contained therein.

¶5Thus, in this instance, but contrary to what Judge Campbell implies, the “pudding” in Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980), is not in the opinion, but, instead, is in the record on appeal of that cause.

¶6The record in Collins v. State, supra, reflects in part the following, when the State’s witness Williams was testifying:

MR. LESHER (Counsel for the Defendant): Your Honor, I object to any testimony of what the child [Shemetra] might have said [to the witness] ... This is total hearsay.

MR. MILLER (The Prosecuting Attorney): Your Honor ... It is an exception to the hearsay rule.

THE COURT: All right ... I overrule your objection.

¶7When the State’s witness Nowlin was testifying, the record in part reflects the following:

Q: (By Mr. Miller, the prosecuting attorney): All right. What did Shemetra [the complaining witness] relate to you?

MR. LESHER: Your Honor, I object to that as being hearsay.

THE COURT: I overrule your objection.

¶8*838The above objection of counsel for the defendant and ruling of the trial court were soon thereafter repeated, not once but at least three times. The witness Nowlin eventually testified that “Shemetra told me that he put his thing in her and hurt her and made her bleed.” On appeal, this Court held that the trial judge erred in overruling defense counsel’s objections, and that such error was reversible error. Collins v. State, supra, at page 538. This Court also correctly held that because such error was only “trial error” the defendant was not entitled to an acquittal, but was only entitled to a new trial.

¶9Thus, the record on appeal in Collins v. State, supra, clearly reflects that trial counsel for the defendant in that cause timely and properly objected to the inadmissible hearsay testimony of the State’s witnesses Williams and Nowlin, but his objection that such testimony was hearsay was erroneously overruled by the trial court. This Court correctly held that such was only “trial error” because the trial judge erroneously overruled the objections made by defense counsel.

¶10Therefore, when the opinion of Collins v. State, supra, is read in light of what actually occurred during the trial of that cause, it is correct. However, if Collins v. State, supra, can be read to mean otherwise, it should be expressly overruled.

¶11But, taking into consideration what was stated and held in Collins v. State, supra, in light of what occurred during the trial of that cause, there is nothing wrong with Collins v. State, supra, except that the opinion should have more clearly and expressly stated what actually occurred during the trial of the case.

¶12Thus, but contrary to Judge Campbell’s reasoning, Collins v. State, supra, is not best understood, when “we examine our opinion in Porrier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984)”; instead, Collins v. State, supra, is best understood when one examines the record on appeal in that cause and, unless legally blind, can clearly see that the defendant in that cause timely and properly objected to the inadmissible hearsay testimony, but his objection was erroneously overruled by the trial judge. Furthermore, the “analytical flaw in our opinion in Collins is [not] due to its failure to mention, let alone discuss, the interplay between the Lumpkin line of cases and the Porier line of cases”; instead, the flaw in Collins v. State, supra, is the failure of its author to expressly state therein that the defendant in that cause timely and properly objected to the admission into evidence of inadmissible hearsay evidence, and his objection was erroneously overruled by the trial judge. Lastly, Collins v. State, supra, was not “erroneously decided because it fails to recognize the distinction between the admissibility of evidence and the probative value of evidence”; instead, its weakness lies in the fact that it gives the aura of that appearance, only because the opinion fails to expressly state that the defendant in that cause timely and properly objected to the inadmissible hearsay evidence, and his objection was erroneously overruled.

¶13The majority correctly withdraws the original majority opinion in this cause that was authored by Judge Odom. Unfortunately, although Judge Odom drew the distinction between “trial error” or “judicial error” and “insufficiency of the evidence error,” he apparently overlooked the fact that in this cause this Court was not dealing with an objection by appellant’s trial counsel, and the erroneous overruling of his objection by the trial judge, but, instead, was dealing solely with whether the evidence that the jury heard had sufficient value to sustain the verdict of the jury. It is now apparent to me that Judge Odom may have been misled by what the State Prosecuting Attorney argued in his petition for discretionary review, that unobjected to testimony can never amount to more than mere “trial error.”

¶14I filed a dissenting opinion to Judge Odom’s opinion. Unfortunately, at that time, I did not see the real meaning of *839“trial error” or “judicial error,” as applied in Texas law. Now that I have read the trial record in Collins v. State, supra, and spent more time researching the subject, I can see the light, and withdraw my dissenting opinion.

¶15Perhaps it is because of this Court’s past treatment of “trial error” or “judicial error” and “insufficiency of the evidence error” that causes much confusion to exist among many members of the Bench and Bar of this State over what is “trial error” or “judicial error”.

¶16Unfortunately, the majority opinion by Judge Campbell is of little assistance to the members of the Bench and Bar in this area of the law.

¶17Perhaps it is because our citizens have been engrained with a deep sense of historical independence that makes Texas a unique and great State. Even when it comes to our law, we are not prone to pander to what some other State’s judiciary might be holding, just because of the holding.

¶18And that may account why some persons have difficulty in drawing the distinction between “trial error” or “judicial error” and “insufficiency of the evidence error.”

¶19As a general rule, a trial judge in Texas may act only when he is called upon to act. The phrase “sua sponte” is or should be an alien phrase in our criminal jurisprudence, invoked only in the most extreme of circumstances.

¶20During the trial of a criminal case, a trial judge usually acts only when he is called upon to act by a party who objects to the admission of evidence offered by the opposing party. As a matter of law, the trial judge may not act independently, “sua sponte,” if you please, because to so act the trial judge runs the risk of violating the provisions of Art. 38.05, V.A.C.C.P., and committing reversible error. If the trial judge is called upon to act during a criminal trial, by a party objecting to evidence, and he overrules the objection, and it is later determined that he acted erroneously, such error is and always should be “trial error” or “judicial error.”

¶21I pause to point out that in this instance the trial judge was never called upon to act; thus, because he was never called upon to act, nor did he act, there was no “trial error” or “judicial error” in the admission into evidence of the inadmissible hearsay testimony of Ritchie.1

¶22Within all of the dicta that is espoused in his opinion for the Court, Judge Campbell never explains or discusses the fact that Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), drew a distinction between “trial error” or “judicial error” and “insufficiency of the evidence error.” In fact, Judge Campbell does not even mention Burks v. United States, supra, and Greene v. Massey, supra, in the dicta portion of his opinion, much less discuss them. And yet, Burks-Greene, supra, are the two cases which created, for purposes of appellate review, the distinction between “trial error” and “insufficiency of the evidence error.”

¶23The Supreme Court in Burks v. United States, supra, held that the Double Jeopardy Clause precludes a retrial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. However, it also held that *840if the error that caused the reversal was only “trial error” then the defendant could be retried a second time.

¶24Thus, when “trial error” or “judicial error” is found to exist by an appellate court, and a challenge to the sufficiency of the evidence is also made on appeal, it is appropriate for the appellate court to review all of the unobjected to evidence that has value, under the assumption that it was properly admitted into evidence, because no objection was made to its admission into evidence.

¶25In Burks v. Greene, supra, the Supreme Court, relying upon its decision of Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), also pointed out that the admission into evidence over objection of hearsay testimony was only trial error. Unfortunately, it did not discuss the effect of unobjected to inadmissible hearsay evidence or testimony. This is probably because many Federal and State jurisdictions hold that inadmissible hearsay testimony or evidence, if admitted without objection, may be considered as probative evidence, either by the trier of fact or an appellate court. See Binder, Hearsay Handbook (Second Edition). However, in the independent and great State of Texas, as Judge Campbell points out, the rule has long been that in a criminal trial “mere hearsay evidence is not only not the best, nor even secondary evidence, it is no evidence,” whether admitted with or without objection. The only real exception to this great rule of law is in appeals from orders revoking probations. Frazier v. State, 600 S.W. 2d 271, 275 (Tex.Cr.App.1980).

¶26Does the fact that unobjected to inadmissible hearsay evidence has no value change the above? I do not think so.

¶27In Texas, unobjected to inadmissible hearsay evidence constitutes “evidence without probative value,” or “zero evidence,” but is such only for appellate review purposes. Thus, when a challenge to the sufficiency of the evidence occurs in Texas, all evidence having “zero value” is excluded from consideration, notwithstanding the fact that under Burksand Greene, supra, all evidence, both admissible and inadmissible evidence, is to be considered in deciding whether the evidence is sufficient to sustain the verdict of the jury. The above is not to state that in Texas, for appellate review purposes, when a challenge to the sufficiency of the evidence is made, we do not consider all the evidence, because we do; in doing so, however, we exclude any evidence that is valueless, as we must under the law as it presently exists in Texas.

¶28In excluding the unobjected to inadmissible hearsay testimony of Ritchie, in judging the sufficiency of the evidence, because it is valueless, such method of analysis is not unusual under our law because in reviewing a challenge to the sufficiency of the evidence, this Court has long deleted the substance of hearsay statements in determining the sufficiency of the evidence, see Alvarado v. State, 632 S.W.2d 608 (Tex.Cr.App.1982); Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1982), and has eliminated from consideration accomplice witness testimony in determining whether it was sufficiently corroborated, see Castaneda v. State, 682 S.W.2d 535 (Tex.Cr.App.1984); Paulus v. State, 633 S.W.2d 827 (Tex.Cr.App.1982), without characterizing these tasks as “exercises in the abstract.” This is because in the great State of Texas such evidence is initially valueless for appellate review purposes, where the sufficiency of the evidence is challenged. Cf. Collins v. State, supra.

¶29In this instance, after excluding the unobjected to inadmissible hearsay testimony of Ritchie, because it is valueless testimony, the remaining evidence is clearly insufficient to sustain the verdict of the jury. Therefore, I concur in the result the majority reaches, that appellant is entitled to an acquittal.

¶30In closing, I emphasize; there is no “trial error” or “judicial error” in this cause; *841instead, the only issue that must be decided by this Court is whether, after excluding the valueless unobjeeted to inadmissible hearsay testimony, the remaining evidence is sufficient to sustain the verdict of the jury. It does not.

¶31The majority reaches the right result, but for the wrong reasons, that appellant is entitled to an acquittal. I concur in that result. However, for reasons I have stated, I must respectfully dissent to the almost four pages of dicta that is in the majority opinion because, as applied, it has nothing to do with the legal issue that is before us.