Young v. StateAnnotate this Case
603 S.W.2d 851 (1980)
Zebedee YOUNG, Jr., Appellant, v. The STATE of Texas, Appellee.
Court of Criminal Appeals of Texas, Panel No. 2.
February 6, 1980.
Rehearing Denied September 10, 1980.
Michael W. Hubbard, Tyler, for appellant.
Timothy D. Eyssen, Dist. Atty. and Donald E. Maxfield, Asst. Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and CLINTON, JJ.OPINION
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 *852 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 cases 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.OPINION ON STATE'S MOTION FOR REHEARING
Because the State urged strongly that the panel opinion in this cause misconstrued certain language providing an exception to the statutory prohibition that spouses "shall in no case testify against each other in a criminal prosecution," Article 38.11, V.A.C. C.P., and claimed that the earlier panel opinion in Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978) supported its submission, we granted the motion for leave to file. Now, having carefully examined and considered the contention and the opinion in Garcia v. State, supra, we find that the State has missed the target by drawing a bead on the wrong point, that what Garcia decided is not the issue here and, therefore, the motion for rehearing is wide the mark.
The exceptional situation at issue is circumscribed by that part of Article 38.11, supra, which reads:"... 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 *853 by one against the other or ..."
The exceptional situation at issue in Garcia, supra, however, was the very next one in a train of others, viz.: "or against any child of either under 16 years of age," id., at 14. The dispositive question that the Court itself raised and considered in the interest of justice was whether the alleged act of indecency with a child is "an offense involving any grade of assault ... committed by one [spouse] ... against any child of either under 16 years of age ..." [Emphasis added in original.] The Court found that the testimony "outlines a fact situation which would constitute an assault" under a specified statute "against the child of the witness" and, therefore, "the wife was a competent witness," Garcia, supra, at 15-16. We have no occasion to disturb that finding and conclusion, for our issue is manifestly different.
What must be looked to here is not the "involving" feature of the statute; certainly the instant offense involved an assault for appellant drove his automobile into a smaller car and thereby, the indictment avers, did "threaten imminent bodily injury to Tommy Lee Gould," an occupant of the car along with wife of appellant and one other. Plainly and simply, this is not a "case for an offense ... committed by one [spouse] against the other." Rather it is a case for an offense allegedly committed by appellant against Gould. As the panel correctly perceived, "the wife was not the injured party in the case being tried."
The State's motion for rehearing is overruled.NOTES
 All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
 There is a suggestion that because appellant's wife "voluntarily" testified the exception at issue was applicable. However, as Garcia v. State, supra, at 15, also correctly points out, "Therefore, the question of whether or not Mrs. Garcia's testimony was voluntary is not dispositive of the issue if she was disqualified as a witness in this case." In other words, the mere willingness of the spouse to testify for the State is not enough to remove the basic bar to that testimony; it must be voluntariness in an exceptional situation.
Nor, given very different policy considerations, are we persuaded that the federal spousal testimonial privilege dealt with in Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) should now determine our own, especially since Article 38.11, supra, appears to receive recurring examination by our Legislature. See its Historical Note.