Summary
holding that section 1.91(b) limitation barred the state from proving a previous common-law marriage by the defendant for purposes of invalidating a subsequent marriage and a claim of spousal privilege
Summary of this case from White v. State Farm Mut. Auto. Ins. Co.Opinion
No. 3-92-263-CR.
March 17, 1993. Discretionary Review Refused June 30, 1993.
Appeal from 264th Judicial District Court, Bell County, Joe Carroll, J.
Troy Hurley, Belton, for appellant.
Arthur Eads, Dist. Atty., James T. Russell, Administrative Asst., Belton, for appellee.
Before POWERS, KIDD, and B.A. SMITH, JJ.
A jury found appellant guilty of the murder of James Edward Welch and assessed punishment at 45 years' imprisonment. Tex.Penal Code Ann. § 19.02 (West 1989). Appellant's first point of error addresses the trial court's denial of Lisa Riley's asserted spousal privilege. Appellant's second and third points of error focus on improper jury arguments in both the guilt-innocence and punishment phases of trial. We will overrule appellant's points of error and affirm the judgment of conviction.
Appellant's first point of error complains that the trial court erred in compelling Lisa Riley to testify despite her assertion of the spousal privilege. An accused's spouse has a privilege not to be called as a witness for the State, except when the accused is charged with a crime committed against any member of either spouse's household. Tex.R.Crim.Evid. 504(2).
To prove that appellant committed Welch's murder, the State relied on testimony from Lisa Riley and an accomplice to the murder, Dwayne Stevenson. As appellant's wife, Lisa Riley claimed the spousal privilege to avoid testifying. The trial judge compelled Lisa Riley to testify, finding no right to claim such privilege. Immediately before his murder, Welch lived with appellant, Lisa Riley, and Stevenson at 1106 4th Street in Temple, Texas.
To repudiate the privilege, the State produced uncontroverted evidence of appellant's previous and undissolved informal (common-law) marriage to Julie Johnson. The State asserts that appellant's informal marriage to Johnson voids his subsequent ceremonial marriage to Lisa Riley, and therefore, the privilege does not apply. See Tex.Fam. Code Ann. §§ 1.91, 2.01, 2.22 (West 1993). Although the parties never formally dissolved the informal marriage, appellant ceased to live with Johnson in March 1987. Appellant notes that the Family Code provision recognizing informal marriages also includes a statute of limitations disallowing proof of any informal marriage outside the prescribed time periods. Appellant contends that any marriage to Johnson terminated on September 1, 1990, and therefore, the statute precludes the State's attempt to prove his common-law marriage in May 1992.
This provision provides in relevant part:
(b) A proceeding in which a marriage is to be proved under this section [Proof of Certain Informal Marriages] must be commenced not later than one year after the date on which the relationship ended or not later than one year after September 1, 1989, whichever is later.
Tex.Fam. Code Ann. § 1.91(b) (West 1993).
The clear language of the statute prevents proof of an informal marriage, for any reason, after expiration of the prescribed limitations period. Therefore, the statute precludes the State's attempt to prove a common-law marriage between Johnson and appellant. Consequently, the State may not rely on evidence of appellant's previous informal marriage to negate the privilege's application.
The State argues in the alternative that Lisa Riley may not claim the privilege because appellant is accused of a crime against a member of his household. Tex.R.Crim.Evid. 504(2)(b). To determine application of this specific exception, we must focus on the meaning of "member of the household."
In the past, courts predominantly interpreted the term "member of the household" in cases involving insurance policies. Such cases construed the term narrowly to include only related members of the family unit. See, e.g., Hartford Casualty Ins. Co. v. Phillips, 575 S.W.2d 62 (Tex.Civ.App. — Texarkana 1978, no writ); National Emblem Ins. Co. v. McClendon, 481 S.W.2d 186 (Tex.Civ.App. — Texarkana 1972, writ ref'd n.r.e.); State Farm Mut. Auto. Ins. Co. v. Walker, 334 S.W.2d 458 (Tex.Civ.App. — Fort Worth 1960, writ ref'd n.r.e.).
More recently, the legislature defined the term "member of the household" in the Family Code chapter governing protective orders. The Family Code defines household as "a unit composed of persons living together in the same dwelling, whether or not they are related to each other." Tex.Fam. Code Ann. § 71.01(b)(5) (West Supp. 1993). Using this definition to determine the scope of the privilege is appropriate because the Family Code's purpose of preventing "family violence" is congruent with the purpose of the privilege's exceptions: to prevent assaults against children, the aged, and any other household member, whether or not related to either spouse. See 33 Steven Goode, Olin G. Wellborn III and M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 504.8 (Texas Practice 1988).
"Family violence means an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, or assault. . . ." Tex.Fam. Code Ann. § 71.01(b)(2)(A) (West Supp. 1993).
Under the Family Code's broad definition of "household," the evidence indicates that Welch was a member of the household of appellant and Lisa Riley. Welch's mother, Mary Knight, testified that Welch no longer lived with her. Although Knight did not know that her son lived with the Rileys and Stevenson at the time of his murder (July 1991), Welch's former roommate directed her to the 1106 4th Street address when she became concerned about his disappearance. Once at this address, Knight questioned appellant about Welch's disappearance. After denying any knowledge of Welch's location, appellant indicated that Welch once lived at this address by giving Knight his remaining clothes and belongings. Lisa Riley and Stevenson both testified that they lived with Welch at 1106 4th Street immediately prior to his murder. This evidence shows that Welch, Stevenson, and the Rileys constituted a "unit composed of persons living together in the same dwelling." Because appellant was accused of a crime against a member of the Rileys' household, Lisa Riley may not claim the spousal privilege. The trial court did not err by compelling her to testify. We overrule appellant's first point of error.
Appellant's second point of error complains that the trial court erred in overruling his objection that the State's jury argument at the guilt stage concerned matters outside the record. The prosecutor stated, "I find myself the last couple of weeks up here apologizing about the inability of science to work miracles in these criminal cases. Last week I tried a trial — ." After the trial judge overruled appellant's objection, the prosecutor continued to describe the previous trial, stating, "Last week we tried a case where a man had been shot six or seven times, and I found myself up in front of a jury apologizing for our inability to do an autopsy. . . ."
Improper jury argument is grounds for reversal of a trial court's judgment if we find that the error contributed to appellant's conviction or punishment. Tex.R.App.P. 81(b). We must, therefore, isolate the error and all its effects and determine if a rational trier of fact might reach a different result if the error and its effects had not occurred. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App. 1989).
Appellant correctly asserts that the State referred to matters not in evidence. However, the comment on an unrelated trial appears ineffectual to carry any weight on the jury's decision of conviction. As it related to a matter wholly irrelevant to the case, the error could not reasonably disrupt the jurors' orderly evaluation of the evidence in this cause. Because a trier of fact would not rationally reach a different result absent the improper argument, it did not contribute to appellant's conviction. We overrule appellant's second point of error.
Appellant's third point of error complains that the trial court erred in the punishment phase of trial by denying his motion for mistrial after the prosecutor argued matters outside the record. The prosecutor stated, "Well, you know, it boils down to, too [sic], you set the value of life in this county. And with so much senseless violence going on in our communities, I mean we've had more murders when you — since you've been on this jury." The trial judge sustained appellant's objection, instructed the jury to disregard the argument, and overruled appellant's subsequent request for a mistrial.
An instruction to disregard an improper argument fails to cure error only if the remark is so inflammatory that its prejudicial effect cannot reasonably be removed. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App. 1990). Because the prosecutor's remark refers to an immaterial matter that may be reasonably disregarded following instruction, we hold that the trial judge's instruction removed any prejudicial effect of the improper argument. We overrule appellant's third point of error.
Finding no error, we affirm the judgment of conviction.