In Re: William Ray Jacobs--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00171-CV

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IN RE:

WILLIAM RAY JACOBS

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

William Ray Jacobs has filed a petition for writ of mandamus, contending the trial court failed to observe the mandatory statutory provision of Article 38.11 of the Texas Code of Criminal Procedure when it permitted Jacobs' wife to testify against him at trial. See Tex. Code Crim. Proc. Ann. art. 38.11 (Vernon 1979). This alleged failure, according to Jacobs, resulted in a void conviction. We read Jacobs' petition to ask us to direct the trial court to vacate that conviction.

Jacobs' petition for writ of mandamus constitutes an improper collateral attack on his, now seven-year-old, criminal conviction. Mandamus is an extreme remedy and will not be granted unless necessary to correct a clear abuse of discretion when no other remedy at law exists. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A court of appeals abuses its discretion when it issues a writ of mandamus absent these circumstances. Id. In this case, there is a more appropriate vehicle for Jacobs to collaterally attack his conviction: a post-conviction application for writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). Because this appropriate remedy exists, we deny Jacobs' petition for writ of mandamus.

Moreover, we find no merit in the issue raised by Jacobs' petition for writ of mandamus. In 1997, Jacobs was convicted of aggravated sexual assault. This Court affirmed Jacobs' conviction on direct appeal. See Jacobs v. State, 951 S.W.2d 900 (Tex. App. Texarkana 1997, pet. ref'd). // During the 1997 trial, Jacobs' wife testified for the State about a letter Jacobs wrote to her before trial. In the letter, Jacobs implicitly admitted his commission of the sexual assault and requested his wife fabricate an alibi for him so he could escape conviction. Jacobs, 951 S.W.2d at 901. Jacobs now contends the trial court erred by permitting his wife to testify against him because such testimony was inadmissible under Article 38.11.

Passed in 1965, Article 38.11 of the Texas Code of Criminal Procedure provided:

Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense. 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.

Act of June 18, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, repealed by Act of May 26, 1985, 69th Leg., R.S., ch. 685, 9(b)(2), 1985 Tex. Gen. Laws 2474. The Texas Legislature, however, repealed Article 38.11 of the Texas Code of Criminal Procedure in 1986, more than a decade before Jacobs' trial in this case. Id. Accordingly, Article 38.11 was not in effect at the time of Jacobs' 1997 trial for the aggravated sexual assault and could not serve as a bar to his wife testifying about a letter Jacobs wrote to her before trial. See Jacobs, 951 S.W.2d at 901. Accordingly, the trial court did not err by permitting Jacobs' wife to testify about the letter she received from him before his trial in 1997.

We deny Jacobs' petition for writ of mandamus.

Josh R. Morriss

Chief Justice

Date Submitted: January 8, 2004

Date Decided: January 9, 2004

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